60th Congress, ) HOUSE OF REPRESENTATIVES. J Kei-ort 
Ist Session. ] ( Mo. lol-^. 



POWER OF FEDERAL GOVERNMENT TO ACQUIRE LANDS 
FOR NATIONAL FOREST PURPOSES. 



April 20, 1908.— Referred to tlie House Calendar and ordered to be printed. 



Mr. Jenkins, from the Committee on the elndiciary, submitted the 

^ following 

REPORT. 

[To accompany H. Re?. No. 365.] 

The Connnittee on the Judiciary received from the House the 
following: 

Whereas the President in his message to the Congress at its present session, on 
December third, nineteen hundred and seven, makes the followmg recommendation: 

"We should acquire in the Appalachian and White Mountain n^gions all the 
forest lands that it is possible to acquire for the use of the nation. These lands, 
because they form a national asset, are as emphatically national as the rivers which 
thev feed, and which flow through so many States before they reach the ocean; and 

Whereas there have been introduced into the House of Representatives hills tor 
the acquirement of national forests in the Southern Appalachian Mountains and the 
White Mountains, the same being H. R. 10456 and H. R. 10457, which provide as 

"That the Secretary of Agriculture is hereby authorized and directed, in this 
discretion, to ac(iuire for national forest purposes, "te purchase or gift lands more 
valuable for tlie regulation of stream flow than for other purposes, and situated on 
the watersheds of navigable streams in the Southern Appalachian Mountains withm 
the States of Marvland, Virginia, West Virginia, North Carolina, South Carolina, 
Georgia, Alabama, Kentuckv, and Tennessee, and in the White Mountains within 
the States of New Hampshire and Maine. * * * ^ .^ t 

" That the Secretary of Agriculture may do all things necessary to secure the sate 
title in the United States to the lands to be acquired under this act; but no payment 
«hall be made for anv such lands until the title shall be satisfactory to the Attorney- 
General and shall be" vested in the United States. . . ■, ^ . .u 

"That the sum of five million dollars is hereby appropriated to carry out the 
provisions of this act, out of any moneys in the Treasury not otherwise appropriated, 
and said sum shall be available immediately and until expended for jaid purpose: 
Provided, That the Secretary of Agriculture shall each year make a detailed report 
to Congress of the lands purchased under this act, and the cost thereof: iheretore 

^Resolved, That so much of the President's message, above referred to, which relates 
to the acquisition of lands in the Southern Appalachian and \^ hite Mountains tor 
the use of the nation" be referred to the Committee on the Judiciary of the House 
of Representatives, together with the questions involved m the bills referred to, 
directing the Secretary of Agriculture to acquire for national forest purposes lands 
in the Southern Appalachian and White Mountains, withm the States_ named with 
instructions to said committee to report fully at an early date their views as to the 
power of the Federal Government by legislation to acquire, by purchase, condemna- 
tion, or otherwise, th." hurls referred to in said l)ills, situated in the States mentioned 
and to appropriate money therefor, and also what power and authority the Federal 
Government has by legislation to acquire for the purpose of forest reser\-es lands within 
a State wherein the Government of the United States has no public domain, and to 
make appropriation therefor. 



y -^ K'Wi 



2 LANDS FOR NATIONAL FOREST PURPOSESA^ 

We respectf all}' report tlmt the committee has obej^ed the instruc- 
tions of the House and had under consideration the aforesaid communi- 
cation. I'he instructions are to report the views of the committee as to 
the power of the Federal Government, b}' legislation, to acquire by 
purchase, condemnation, or otherwise, the lands referred to, situated 
in the States mentioned in the preamble, and to appropriate money 
therefor; and also what power and authority the Federal Government 
has b}^ legislation to acquire for the purpose of national forest pur- 
poses lands within a State wherein the Government of the United 
States has no public domain, and to make appropriation therefor. 

To restate the question, in other words to be gathered from the en- 
tire communication, Has Congress the power to enter a State and take 
from the owner thereof lands for forest purposes more valuable for 
the regulation of stream flow than for other purposes? The connnit- 
tee have been aided in their research by arguments made on behalf of 
the constitutionality of the measure and also in favor of the unconsti- 
tutionality of the same. The committee is not unmindful of the inter- 
est taken by many people in this matter, man}- believing that if Con- 
gress has the power and would exercise it, it would be beneficial, but 
it is purely a question of power. In this matter the committee is lim- 
ited to answering a constitutional question, which must be gathered 
from the communication sent by the House to this committee, and can 
not consider any question of policy. It is said on behalf of the con- 
stitutionality of the proposed measure that the object is the regulation 
of stream flow in navigable rivers, while the instrument sent bv the 
House to this committee says, in part: "To acquire for national forest 
purposes lands more valuable for the regulation of stream flow than 
for any other purposes.'' 

In order to determine the question, reference will have to be made 
to the Constitution. It is universally agreed that the Government of 
the United States is one of limited power; that the power of the 
United States is to be found in the Constitution of the United States; 
that the Government of the United States is not only one of limited 
power, but the powers are enumerated. After stating what powers 
are conferred on Congress by enumeration, follows a provision for 
carrying the express powers into effect, authorizing Congress to 
make all laws necessary and proper for carr3nng into execution the 
enumerated powers in the Constitution. The construction of this 
paragraph was very aptly and wisely stated in McCulloch r. Marj^land 
(i Wheat., 316), by Marshall, Chief Justice, who said: 

But we think the sound construction of the Constitution must allow to the national 
legislature that discretion, with respect to the means b}^ which the powers it confers 
are to be carried into execution, which will enable that body to iierform the high 
duties assigned to it, in the manner most beneficial to the people. Let the end be 
legitimate, let it be within the scope of the Constitut^ion, and all means which are 
appropriate, which are plainly adapted to that end, which are not prohibited, but 
consist with the letter and spirit of the Constitution, are constitutional. 

The express enumerated power so strongly relied upon is the one 
that confers upon Congress the power to regulate commerce between 
the States. The question addressed to this committee is much more 
important than the average person may think. It is ver}^ easy for 
those in favor of a proposition to lose sight of an}^ constitutional ques- 
tion involved. As the nation grows and expands many appeals for 
relief are made for Federal power b}' the people, apparently of the 



D. ot 0. 



I' 



LANDS FOR NATIONAL FOREST PURPOSES. 



belief that the National Government is capable of immense powers of 
ri legislation for the g-eneral welfare of the people. When the people 
'^n are not in sympathy with the exorcise of Federal power they are 
^^ extremely sensitive, and the b.'.st and only way is to pursue the path- 
'~^' way so clearly detining- the line of demarcation between State and 
Federal power. There is nothing- more dangerous to the peace, pros- 
perity, and perpetuity of this nation than for Congress to execute 
powers not conferred. The people will alwaj^s be loyal to the States, 
and the nation will always be in need of the assistance and support of 
the people; and the best way to obtain the sympath}" and support of 
the people for the National Government is for the Congress of the 
United States to keep within the limitations conferred l)y the Consti- 
tution. 

It was said bv Taney, Chief Justice, in Martin v. Waddell (1842), 
16 Pet. (U. 8.)^ 410, that— 

when the Revolution took place the people of each State became themselves 
sovereign, and in that character hold the absolute right to all their navigable waters 
and the soils under them for their own common use, subject only to the rights since 
surrendered by the Constitution to the General Government. 

This language was repeated bv McKinley, J., in Pollard r. Hagan 
(1845), 3 How. (U. S.), 229. The Constitution of the United States 
confers no power of eminent domain or of legislation over State terri- 
tory, except that contained in the seventeenth clause, eighth section, 
first article, relating to the seat of government and places purchased 
with the consent of the State for forts, magazines, etc. Hence it was 
said by the court, in the case last cited, that, even if Georgia had in 
her compact of cession to the United States of the territory of Ala- 
bama granted the municipal right of sovereignty and eminent domain — 

such stipulation would have been void and inoperative, because the United States 
have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or 
eminent domain within the limits of a State or elsewhere except in the cases in which 
it is expressly granted. 

Hence it was held in that case that the shores of navigable waters 
and the soils under them were not granted by the Constitution of the 
United States, but were reserved to the States, respectively, and that 
Alabama, though a new State, had after admission the same rights, 
sovereignty, and jurisdiction over the subject as the original States. 
This was reaffirmed in Gilman v. Philadelphia (1865), 3 Wall. (U. S.), 
713. 

These authorities invite attention to two important matters bearing 
on the question, one the extent of ownership by the people and the 
States, of the navigable waters and the soils under them, and the riparian 
rights of the people and States: All of which are involved, when the 
United States seeks to acquire lands for forest purposes, and affected 
by the constitutional question. 

The other not constitutional but extremely important, as to whether 
the States or National Government shall exercise jurisdiction over lands 
so acquired. The United States can only exercise authority when 
lands are purchased by the consent of the legislatures of the States, in 
which the same shall be for the erection of forts, magazines, and 
arsenals, dock j^ards. and other needful buildings; therefore, it seems 
plain that the United States can not, even with the consent of the States, 
exercise jurisdiction, and if the United States purchases lands as con- 
templated, the same will forever remain subject to State power. 



4 LANDS FOR NATIONAL FOREST PURPOSES. 

The National Government can not acquire land for national forest 
purposes unless that power is conferred upon Congress by the Con- 
stitution. Congress can not exercise this right unless it is necessary 
to accomplish some object within the authority of Congress. A gov- 
ernment of limited power can not afford to exercise a power it does 
not enjoy when the exercise of the power is at the expense of the 
creator of the government of the limited power. The people created 
the National Government by adopting the Constitution, giving it 
limited power only, and defined the powers b}' enumeration. So 
jealous were the States of the new sovereign, and so determined to 
enjoy rights not delegated, that, notwithstanding it w^as universally 
conceded by the f ramers of the new government that no power could 
be exercised unless conferred by the Constitution, the tenth amend- 
ment to the Constitution was adopted. 

Powers not delegated to the United States by the Constitution, nor prohibited by 
it to the States, are reserved to the States respectively, or to the people. 

In speaking of this amendment, the Supreme Court of the United 
States, in Kansas v. Colorado (206 U. S., 46), said in part: 

This amendment, which was seemingly adopted with prescience of just such con- 
tention as the present, disclosed the widespread fear that the National Govern- 
ment might, under the pressure of a supposed general welfare, attempt to exercise 
powers which had not V)een granted. With equal determination the framers intended 
that no such assumption should ever find justification in the organic act, and that 
if in the future further powers seemed necessary they should be granted by the people 
in the manner they had provided for amending that act. 

All power is vested in the United States, the several States, or the 
people of the United States. What power is not enjoyed l>y the 
United States is with the States or the people. The States and the 
people have some constitutional rights, even if there is nothing more 
involved than some mountainous country and forests of timber of no 
great commercial value. If the Federal Government lacks the power, 
and the States give their consent to the legislation, it will not confer 
power on the United States, as the States can not enlarge the powers of 
the Federal Government in that way. The National Government can not 
afford to invade a State and take from the people, in violation of their 
reserved rights, the navigable waters and the soils under them, and 
riparian rights of the people and the States, and private lands or the 
lands of a State, for any purpose unless the power exists, and if the 
power exists and is legitimate and within the scope of the Constitu- 
tion, its exercise can not be questioned by the courts and ought to be 
acquiesced in by the people; but if the power does not exist, no matter 
how necessary, proper, and beneficial to the people, its exercise can 
and in time will be questioned, and the people will lose confidence in 
the National Government if attempts are made to violate their rights 
and exercise powers not conferred by the Constitution. 

The National Government can never be maintained and perpetuated 
unless it keeps within its just powers. An unwarranted exercise of 
power when not conferred by the Constitution may be overlooked 
when necessary to save the life of the nation. It will never be over- 
looked or forgotten if there be unwarranted Federal action or the 
rights of the people or the States are involved, even if the occasion 
and demand is great. It may look like a small and unimportant 
matter and meet the approval of public opinion for the Federal Gov- 
ernment to invade a State and condemn lands for forest purposes. 



i 



LANDS FOR NATIONAL FOREST PURPOSES. 5 

But if the power is lacking- the principle is grciit, and it is the duty 
of Congress to jealously guard the rights of the States and not attempt 
to exercise powers not conferred. There is no dispute but what the 
National Government has authority to take land by right of eminent 
domain whenever the use of the land is necessary in furtherance of 
the execution of any power given the National Government by the 
Constitution. 

No one questions but what the United States can acquire lands for 
military purposes; for the erection of public buildings, such as post- 
offices and court-houses; in the interest of coast survey; for the pur- 
pose of erecting light-houses, under the powers conferred by the 
Constitution. But in each such case the controlling question is as to 
whether or not the use to which the land is to be put is a public one. 
T^hat is, in other words, the power to act must be found in the Consti- 
tution, and after the power is ascertained it must be found that the 
use is pui>lic. It is unnecessarv to determine whether the use is 
public when the power is wanting. In other words, as more directly 
applicable to this matter, Congress having power to regulate commerce 
between the States have an unquestioned right to improve navigable 
streams, and may, for that purpose and to that end, take land when- 
ever in the judgment of Congress it is necessary to the proper exercise 
of that power. But an entirely different question is presented when 
the United States attempts to acquire forest lands because it is claimed 
by some, not by all, that it will cause it to rain and thereby increase 
the flow of the stream. If the use of the land is to assist in the execu- 
tion of some power of government a different question is presented. 

The important question arises: Has the National Government the 
power under the Constitution to acquire lands for the purpose of 
national forestry purposes, according to the words of the resolution? 
If so, unquestionably Congress has power to make all laws necessar}' 
and proper to carry that power into execution. There is no difference 
as far as the question herein is concerned between the right to pur- 
chase and the right to condemn. For the purpose of answering the 
House, the acquisition by purchase and condemnation may be treated 
together, and acquisition by the words "or otherwise" may be treated 
as including gifts or excluded as immaterial. A careful reading of all 
the enumerated powers contained in the Constitution fails to disclose 
any authority on the part of Congress to acquire lands in a State by 
condemnation or purchase for national forestry purposes. Not that 
express power to acquire lands for national forestry purposes must be 
found in the Constitution in so many words among the enumerated 
powers, but an express power must be first found that can be executed 
by the acquisition of lands for forestry purposes. The express power 
is placed in the Constitution to authorize Congress to act. Then the 
question arises: Is the proposed act to acquire lands within the mean- 
ing of the Constitution necessary and proper to carry the express 
power into execution? 

Marshall, Chief Justice, has told Congress how legislation can be 
constitutional within that power. Congress must have discretion to 
exercise the power in a manner most beneficial to the people. The 
end must be legitimate and within the scope of the Constitution, then 
all appropriate means plainly adapted to that end, not prohibited but 
consistent with the letter and spirit of the Constitution, are constitu- 
tional. As illustrated, by the power given Congress "to raise and 



6 LANDS FOR NATIONAL FOREST PURPOSES. 

support armies." It is supposed that Congress will exercise the poAver 
most beneficial to the people as to the size of the Arm}', pay of the 
Arm}^ and how cared for, etc. And all power of Congress to provide 
for the particular thing named is not to be found in express words in 
the Constitution. The same might be said of the familiar power to 
establish post-olBces and post- roads that will secure the transportation 
and deliver}' of the mails, and appropriate buildings. As applied to 
the matter before the committee, unless an aid and betterment of navi- 
gation, it is clearly unconstitutional. 

Then the further question arises: Is the acquisition of lands for for- 
est reserves a necessary and proper act to carry into execution the 
power to regulate commerce? Still further: Is Congress exercising a 
constitutional discretion most beneficial to the people when it seeks to 
acquire mountains and forests, unless it appears the best, cheapest, and 
most legitimate means to control the flow of streams and improvement 
of navigation? An express power must be found in the Constitution. 
It was impossible for the Constitution to call by name or state all Con- 
gress could do. For to mention any specific act under any one express 
power would exclude things not mentioned and limit unnecessarily 
the power of Congress; therefore much is left to the wise and just 
discretion of Congress in legislating pursuant to the expi-ess power 
granted. And the limitation of that power, so aptly stated by 
Marshall, Chief Justice, can not be improved upon. But it is plain to 
be seen that legislation pursuant to an express power is subject to the 
limitations cited. 

Would it be constitutional for Congress in the exercise of its discre- 
tion to buy a site for a small public building, to condemn iO acres of 
land and interfere with as many people when 1 acre of land would be 
sufficient? When an express power is found that will justify legisla- 
tion to carry that power into execution, it is still subject to constitutional 
limitations. Is the power sought to be exercised by Congress fairly 
deducible from the express power granted? Is the power to acquire 
land for forestiy purposes fairl}^ deducible from the power to regulate 
commerce? Would it be an honest exercise of discretion for the mani- 
fest interests of the people? This feature must be closelv scanned or 
everything popular and demanded by the people will soon be considered 
constitutional, and constitutional law will soon be a thing of the past. 

A careful reading of the resolution discloses that the object sought 
is not the regulation of conunerce; that the object of the acquisition of 
land is for national forest purposes, though incidentally it ma}' be an 
aid to conmierce. And it has been suggested that the United States i\ 
Gettysburg Electric Railway Company (1(!0 U. S., 668), decided in 
1896, is authority for the constitutionality of the proposed measure. 
In that case the United States sought to condemn lands for the pur- 
pose of preserving the lines of battle at Gettysburg, Pa., and for mark- 
ing with tablets the position occupied by the various commands of the 
armies of the Potomac and of northern Virginia on that field. The 
Supreme Court held that the right of condemnation existed: that the 
power to acquire and condemn existed, having been conferred by 
the Constitution, and that the use to which the lands were to be put 
was a public one. The Constitution gives Congress the power to 
declare war; to raise and support armies; to provide and maintain a 
navy. It was held by the court that the end to be attained was within 



LANDS FOR NATIONAL FOREST PURPOSES. 7 

that power. The facts brought the case within the doctrine of Mar- 
shall, Chief Justice, and the court in part said: 

That the battle of (Jettysburg was one of the great battles of the wcjrld. The 
number.s contained in the opposing armies were great; the sacrifice of life was dread- 
ful, while the bravery and, indeed, heroism displayed by both the contending forces 
ranked with the highest exhibition of those qualities ever made by man. Tlie im- 
portance of the issue involved in the contest of which this great battle was a part 
can not be overestimated. The existence of the Ciovernment itself and the per- 
petuity of our institutions depended upon the result. V^aluable lessons in the art of 
war can now be learned from the examination of this great battlefield in connection 
with the history of the events which there took place. Can it be that the Govern- 
ment is without power to preserve the land and properly mark out the various sites 
upon which this struggle took place? Can it not erect monuments provided for by 
those acts of Congress or even take possession of the field of battle in the name and 
for the benefit of all the citizens of the country for the present and for the future? 
Such a use seems necessarily not only a public use, but one so closely connected w'ith 
the welfare of the Kepublic itself as to be within the powers granted Congress by the 
Constitution for the purpose of protecting and preserving the whole country. 

This case certainly nuist be regarded as an extreme application of 
the doctrine of Marshall, Chief Justice. If there is any doubt in the 
mind of any person after reading the Constitution, that doubt will be 
readily dispelled by the foregoing doubtful case and the further case 
of Kansas /". Colorado (206 U. S., 46). The United States intervened. 
From the statement of the case it appears that the United States was 
seeking to reclaim about 60,000,000 acres of land belonging to the 
United States within the arid region, and in the opinion of the court, 
speaking of the claim of the United States, it is said on page S6: 

It rests its petition of intervention upon its alleged duty of legislating for the 
reclamation of arid lands. 

And on page 87 the court further says: 

Turning to the enumeration of the powers granted to Congress by the eighth sec- 
tion of the first article of the Constitution, it is enough to say that no one of them by 
any implication refers to the reclamation of arid lands. 

Section 8 contains the power of Congress to regulate interstate com- 
merce, yet the court says on pa^e 88: 

We must look beyond section 8 for Congressional authority over arid lands. 
And on page 91, the court further says: 

But, as our national territory has been enlarged, we have within our bordei's exten- 
sive tracts of arid lantis which ought to be reclaimed, and it may well be that no 
power is adequate for their reclamation other than that of the National Government. 
But if no such power has been granted none can be exercised. 

And the court reached the conclusion that the United States under 
the Constitution could not for want of power reclaim arid lands under 
the commerce clause of the Constitution or an}' other express power. 
There is yjracticall}" no ditference between reclaiming arid lands for 
agricultural purposes and acquiring lands for forestry purposes. The 
facts in the case, the conclusions reached by the court, and the views 
of those insisting upon the constitutionality of the proposed legisla- 
tion, can profitably be restated by an extract taken from an argument 
made and brief tiled on ])ehalf of the constitutionality of the proposed 
measure: 

The United States of America filed its petition of intervention, and alleged that 
within the watershed of the Arkansas River are 1,000,000 acres of public lands^ 
uninhabitable and unsalable unless rendered so by the impounding of waters in this 
watershed to reclaim this land, that legislation of Congress has sanctioned the use of 



b LANDS FOR NATIONAL FOREST PURPOSES. 

these waters in this arid region, and that under the reclamation act of June 17, 1902, 
$1,000,000 have been expended in procuring sites for reservoirs and dams. 

This contention brought directly to the court the question whether the amount of 
the flow of the waters of the Arkansas River is sul^ject to the authority and control 
of the United States. .The United States claimed that in and near the river, as it 
runs through Kansas and Colorado, are large tracts of arid lands; that the National 
Government itself is the owner of many thousands of acres, and that it has the right 
to make such legislative provision as in its judgment is needed for the reclamation 
of all these arid lands and for that purpose to appropriate the accessible waters. 

This claim, says the Supreme Court, involves the question whether the reclamation 
of arid lands is one of the powers granted to the General Government. Certainly 
it is not, for in the enumeration of the powers granted to Congress by the eighth 
section of the first article of the Constitution we can not find one which by any 
implication refers to the reclamation of arid lands. * * * 

That clause only decides that the reclamation of arid lands is not one of the pow- 
ers granted to the General Government, and it was not claimed to be a means by 
which an express power was to be carried into execution. 

A concession that the reclamation of arid lands is not within any 
power of Congress. 

Assuming and conceding that Congress has plenary power over all 
navigable streams iTnder the commerce clause of the Constitution, the 
important question is. Is the pending measure needed to improve 
navigation? Would it l)e the consensus of opinion on the part of a 
large number of men, competent to speak upon the subject, that the 
acquisition of lands for forestry purposes is needed within the consti- 
tational discretion of Congress to improve navigation? The power 
simply includes the ordinary means of executing the power with ref- 
erence to the power and dignity of the nation, the rights of the States 
and of the people, the object, purpose, and end sought without attempt 
to exercise powers not conferred. If not expressed, is it properly 
incident to an expi'ess power necessary to its execution? But it is 
argued that the end sought is the control of stream flow to improve 
navigation. No one questions the right and power of Congress, under 
its power to regulate commerce between the States, to make all laws 
necessary and proper to carry that power into execution, which will 
include the improvement of navigation, [inquestionabl}^ Congress 
has the power to improve navigation under its power to regulate com- 
merce, for commerce includes navigation and intercourse, transporta- 
tion by water as well as by land, and control of all accessible waters. 
The main proposition is to acquire lands for forestry purposes — just 
how that will regulate stream flow or improve navigation is, for the 
present, rather speculative. 

It is very clear that the only end sought is the retention and preser- 
vation of forests — that is, an increase of the flow of the stream — and 
improvement of navigation is not the end sought, not the principal 
matter. Unquestionably Congress has power to increase the flow of 
streams and improve navigation under its power to regulate commerce. 
Hence it is argued that the retention and preservation of forests will 
increase the flow of streams and improve navigation so as to invoke 
the commerce clause of the Constitution, and, under that power, 
acquire lands for forestry purposes svithout any reference to the effect 
upon the flow of streams or improvement of navigation. If the end 
sought is the increase of the flow of streams and improvement of navi- 
gation, and that is the princip.il matter, why not apply to Congress 
for the improvement of the I'ivers involved; and, if Congress in its 
wisdom decides upon tlie improvement, no pei'son will risk his repu- 



LANDS FOR NATIONAL FOREST PURPOSES. 9 

tation by insisting' that it is neccssarv and proper to accjuiro the 
mountains and forests involved in order to improve the navigation. 

What is the primary question:' In common fairness itnmst be said, 
the acquisition of hinds for forestiT purposes, and that the improve- 
ment of navii»-ati()n is ])ut an incidental tiiatter. This is not said to beg 
the question but to better develoj) the constitutional question involved. 
Does any person believe for a moment that if a i)roposition was made 
to Congress to appropriate $5,0()(),000 for the improvement of the 
navigation of the rivers involved it would connnand one vote. Has it 
not been determined by Congress at the present time not to make 
any appi'opriation for the improvements of rivers and harbors this 
3'ear. It is a very important question and should be rightly deter- 
mined. We should not enter upon such an unknown seaof difticulties, 
unless the power is clear, for no one can tell when this expenditure of 
public money will end. 

The United States is the moving party, not the States. That is, the 
States are not taking any action whatever against the United States; 
are not interfering with the flow of any stream or assuming any right 
or control over navigation or connnerce. On the contrary, it is the 
United States asserting the right to enter States and take by purchase, 
gift, or condemnation lands for national forestry purposes. The inter- 
ested States may be willing, the people of these States maybe willing, 
that Congre:ss shouldin this manner exceed its powers for their benefit, 
but this does not justify unconstitutional action npon the part of Con- 
gress, and will sooner or later be cited as a precedent — as a usurpation 
of power on the part of Congress. 

The lands to })e selected may be more valuable for the regulation of 
stream flow than for any other purpose and yet might not be an aid to 
navigation or even increase the flow of the stream, and not be valuable 
for either. How will the transfer of the title to these mountains and 
forests to the United States increase the flow of the stream or improve 
navigation^ The argument on behalf of the measure seems to estab- 
lish several propositions: That the reclamation of the forests is a pub- 
lic one for the l)enetit of the people; that the removal of the forests 
permits the rainfall to run at once over the land into the streams and 
soon disappear; that the retention of the forests increases the quantity 
of leaves and other vegetable matter, so that the rainfall percolates into 
the ground. It must be conceded that the flow of the stream depends 
upon the quantity of rainfall and its velocity, (rood sense discloses 
that in times of great and continuous drought it takes an immense 
amount of rain to att'ect the flow of a stream. If i-ain falls slowly it 
percolates into the ground — swamps and low places — and not until 
the ground is well soaked is there an appreciable efl'ect upon stream 
flow. 

No person will want to risk his reputation by saying that commerce 
by water transportation can be successfully carried on by means of 
rainfall or that the acquisition of lands by the United States will 
increase rainfall or improve navigation. When there is large quan- 
tities of snow passing away and rainfalls producing floods, the flow of 
the stream will necessarily be increased, but practically as soon as 
the flood ceases the stream flow will recede to normal depths, and the 
water in the ground can not be depended upon to provide for naviga- 
tion. In order to follow and accuratelv determine the matter, the 



10 LANDS FOR NATIONAL FOREST PURPOSES. 

nature of the transaction must be considered. It is either to acciuire 
lands for forestry purposes or to improve navigation of streams. If 
the former, it can not be done, for there is no express power. If the 
latter, it can not be done under the construction given by Marshall, 
Chief Justice. For to purchase mountains and forests to improve 
navigation would not be exercising a discretion most beneficial to the 
people. The end would not be legitimate; not within the scope of 
the Constitution; it would not be an appropriate means adapted to that 
end, and would not consist with the letter or spirit of the Constitution. 

In Kansas v. Colorado the Supreme Court of the United States 
denied the right of the United States to reclaim arid lands, while the 
case concedes it would be a great public benefit and have a tendency 
to improve navigation. It is not a question of strict construction of 
the Constitution on the one hand and of a broad and liberal construc- 
tion on the other, but an ascertainment of the line of demarcation 
between State and Federal powder, with justice to both. 

Where in the Constitution is to be found the power in the National 
Government to reclaim its own arid lands or to acquire arid lands for 
the purpose of reclamation ^ Nowhere, not even under the power to 
regulate commerce. When the reclaimed lands will likely increase 
the rainfall, thereb}^ increasing the flow of the stream, answers the 
Supreme Court in Kansas c. Colorado. Where in the Constitution is 
to be found any power in the National Government to acquire lands 
for national forestr}' purposes? Nowdiere, answers the Constitution 
and the Supreme Court of the United States in Kansas v. Colorado, 
for the ca.-e in Kansas v. Colorado and the question before your com- 
mittee are absolute!}' identical. 

The action of Congress to be constitutional must depend upon the 
powers enumerated in the Constitution. To justify action one at least 
of the enumerated powers must expressly provide for the legislation, 
or it must be justified by that power in the constitutional manner 
indicated, as in case of power to declare war. Here is an express 
power, and Congress can for any reason make a declaration of war 
against any nation, and its action can not be questioned by the courts. 
But having declared war man}^ questions ma}' arise as to necessary and 
proper action to make the declaration of war efi'ective, and this nnist 
be determined by construction, as to its being necessary and proper; 
whether an appropriate means to carry the war power into execution 
in a manner most beneficial to the people. Is the end legitimate and 
within the scope of the Constitution? For these matters are not 
expressly provided for — such as the size of the Army, how raised, by 
enlistment or draft; as to discipline, whether regulars or volunteers; 
as to the arm of service, the term of service. All of this and many 
more show what legislation is a necessary and proper execution' of 
the power. 

The doctrine as to what can be done pursuant to an express power 
so as to make it operative and eflective presents a most interesting 
question in our constitutional history. There is great danger of the 
powerful influence of two extremes, one for anything within the will 
of Congress, the other to so limit power as to prevent legislation when 
wise, necessary, and constitutional. We should in the interest of the 
people avoid both extremes. Congress should never shrink from 
exercising all of its full power, when beneficial to the people, and 
always be careful to avoid an unconstitutional exercise of power. The 



LANDS FOR NATIONAL FOREST PURPOSES. 11 

constitutionality of the proposed measure is worthy of careful consid- 
eration for the etlect of the proposed leoislation upon the future of 
the nation. 

If Cono-ress has power to acquire the lands in' question, there is 
nothing to prevent the national power from acHjuirino- any and all lands 
of a State and all the worthless lands of all the States the people desire 
to sell, and it will increase friction between the State and Federal 
Government over the question of jurisdiction. Forests and worthless 
lands will be for sale all over the nation, and the power of the States 
will be subordinate to the desire of the people to unload on the nation 
lands that the poorest emigrants will not locate upon. So we agree 
that the power to regulate commerce is expressly provided for, and 
according to the ])road definition given that term by the courts and the 
commercial world much can he constitutionally done, and the growing* 
wants of the people will call for full exercise of all thepower Congress 
enio3^s. But this will not justify Congress assuming the reclamation 
of forests under the remote and speculative claim that it will improve 
navigation. 

It does not change the Constitutional aspect, because the lands can 
be purchased by agreement with the owners; but if the power is exer- 
cised and the owners refuse to sell they will have to submit to the land 
being taken from them, and this raises a very important question — 
whether the Government would be discharging its Constitutional duty 
in taking from private owners their property. Even assuming that 
the Government can go and take property, it certainly must be abso- 
lutely needed for the use of the Government, for, as the Supreme 
Court of the United States said in Van Brocklin & Another r-v. State 
of Tennessee & Others, 117 U. S., 151, page 158: 

The United States did not and can not hoUl property, as a monarch may, for private 
or personal purposes. All the property and revenues of the United States must be 
held and applied, as all taxes, duties, imp >sts, and excises must be laid and collected, 
to pay the debts and provide for the common defense and general welfare of the 
United States. 

It does not satisfy the Constitution that it would be beneficial to the 
people or popular with them; or that the Government can use the 
same, or that the Government needs it. The power to acquire it must 
first be ascertained independent of all these considerations, and then 
if the power is ascertained, the question arises as to whether or not the 
end is legitimate, whether it is fairl}- and honestly exercised in a man- 
ner beneficial to the people. It must absolutely be needed for the use 
of the Government, in the furtherance of some one of the enumerated 
powers. 

It can not be doubted that the original idea is the acquisition of 
lands for forestry purposes. This is easily ascertained from what has 
been said in various \^ays in advocacy of the measure. The improve- 
ment of navigation to those supporting the proposition is a matter of 
secondary, if of any importance, suggested so as to bring it under 
the commerce clause. 

There is another feature of the case to be considered, tending to 
show that the primary object is the acquisition of lands for forest 
purposes, and not for the improvement of navigation. Congress will 
not be following constitutional lines if it attempts, under the circum- 
stances of the case, to improve navigation bv acquiring lands, for 



12 LANDS FOR NATIONAL FOREST PURPOSES. 

Congress has no constitutional authority to act when there is no com- 
merce. That is, it would be exceeding its ]::)ower, within the definition 
of Marshall, C. J. 

Every person interested knows that Congress does not intend b}" 
the purchase or by the acquisition of the lands to take any steps 
affirmatively toward the improvement of the rivers affected; that the 
improvement of navigation will go on just the same with or without 
the acquisition of the lands, and the talk of improvement of naviga- 
tion and the regulation of commerce is to secure the lands for forest 
purposes, without reference to the effect upon navigation or commerce. 
It is a matter of common knowledge that the purchase of the lands 
will not bring commerce; that the increase of the flow of streams is 
not called for in the interest of commerce; that many of the streams 
have never been used and can not be made navigable as instrumental- 
ities of commerce. 

In other words, the demand for the acquisition of the lands is not in 
the interest of either navigation or commerce. It is well known that 
man}^ acres of the land sought for forest purposes will not be needed 
or considered in connection with either navigation or commerce, and 
under any theory can not be made ver}" favorable for either. As 
showing at least how necessary it is that the question be thoroughl}^ 
examined and carefully understood several of the earnest advocates of 
the measure insist that it is not necessary to take the land. The same 
object can be accomplished by the Federal Government preventing the 
cutting of the timl)er, and thereby improve navigation. It is too plain 
for discussion that the sole purpose and object is the acquisition of 
lands for forest purposes; that the thought of improving navigation 
or regulating commerce is not to be seriouslv considered; that the 
jDurchase of the lands will not improve navigation; that there is no 
commerce to be subserved. It is a well-known fact that much of the 
land in question is so remote that, while it would be considered apart 
of the forest reserve, it could under no circumstances be considered 
valuable for increase of the flow of streams or for the purposes of 
navigation. So the whole proposition must be considered as an acqui- 
sition of lands for forest purposes. 

It does not require any evidence of the situation outside of the 
record for Congress to actcorrecth^ That is, the communication sent 
to the committee by the House is full enough. Congress can not 
shirk its constitutional duty, for the proposition is plain 1}^ and suffi- 
ciently presented to Congress. Can Congress acquire lands for forest 
reserves '■? Can Congress acquire lands for forest purposes because of 
the increase of the flow of the stream and consequent regulation of 
commerce? 

If this can be constitutionally done, under the commerce clause of 
the Constitution, the doors will be opened wide enough to dispense 
with all State power and rights and do anything that is popular with 
the people or quite generally demanded. If the constitutionalty of the 
measure is to be determined by the amount of an appropriation, we 
shall have no guide for future action except the amount of monej' 
involved. Some of the States of the Union have been very sensitive 
about excessive Federal power, but raise no voice against its exercise 
when the benefits accrue to them. Forever hereafter they should hold 
their peace. 



LANDS FOR NATIONAL FOREST PURPOSES. 13 

Restating- the proposition briefly: Conj^ress has express power to 
regulate coininerce between the States; but a great question presents 
itself when it is asked what can be done under and pursuant to that 
power. The Constitution says Congress shall have power to make all 
laws necessary and proper to carry that power into execution. The 
fact that Congress has express power to make all laws necessary and 
proper to carrj' the enumerated powers into execution does not en- 
large the power of Congress, for without it, unquestionably, Congress 
can do the same thing — that is, exercise all powers to the same extent 
as now. Still, we have but a limited idea as to what can be done, even 
when we keep in mind the rule laid down by Marshall, C. J., and 
carefully consider the many things the Supreme Court has said Con- 
gress has power to do. The great growth of the nation in popula- 
tion, business, and commerce make many demands upon Congress for 
legislation under that power, and no narrow construction should be 
adopted that will prevent proper Congressional action. No statement 
can be made that will include all Congi-ess can do under that power. 
The boundaries can not be marked or limits to its exercise of legisla- 
tive power prescribed. 

The framewoi'k of the Constitution shows how thoroughly the 
Fathers understood what they were doing. The best way to reach a 
correct conclusion is to consider what is proposed, what is the matter 
sought to be done, the end contemplated. ^Vith that ascertained, the 
question is, Can it be constitutionally accomplished within the con- 
struction stated by Marshall, C. J., the proposition being for Con- 
gress ""to acquire for national forest purposes lands more valuable 
for the regulation of stream How than for an}- other purposes." 
Under what power, we ask? The answer is, the power to regulate 
commerce. Assuming the fact to be that the land is more valuable 
for the regulation of stream flow than for any other purpose, does it 
prove, within the meaning of the Constitution, that its purchase will 
improve navigation % 

We fully appreciate the width and depth of the power that must be 
ascertained bj- construction, and readily concede that the power is so 
great that Congress has the right to improve navigable streams, and 
for that purpose may take lands. But are we, when we acquire lands 
for national forest purposes, regulating commerce or improving navi- 
gable streams? If we acquire all of the lands in the United States for 
national forest purposes, will it improve navigable streams or in any 
manner operate as a regulation of commerce? Assuming that under 
its power to regulate commerce Congress has power to improve navi- 
gable streams, would anyone\say Congress was exercising that discre- 
tion with respect to the means employed, most beneficial to the people, 
when, in attem])ting to improve the navigation of streams, it acquires for 
national forest purposes lands more valuable for stream How than for 
any other purposes? 

It does not change the constitutional character of the matter when 
the selection is limited to lands more valuable for stream How than for 
any other purposes. That is, the fact that it is so valuable, will not 
make it constitutional to take the lands for national forest purposes. 
Is the taking of lands for national forest purposes a substantial and 
practical way of improving navigation? Would the end be legiti- 
mate ? Would the means employed be appropriate and plainly ada.pted 



14 LANDS FOR NATIONAL FOREST PURPOSES. 

to that end!' How much will navigable streams be improved b}^ the 
United States purchasing- lands for national forest purposes, even if 
more valuable for stream flow^ than for any other purposes? Has Con- 
gress exercised that discretion with respect to the means emploj^ed in 
the manner most beneficial to the people when it undertakes to improve 
navigable streams by acquiring lands for forest purposes more valu- 
able for the regulation for stream flow than for any other purpose? 
Could it fairl}' be said that by so doing Congress has kept itself within 
the scope of the Constitution? Are these means that can be em- 
ployed under the Constitution, or would the same be employed even 
as a business proposition? 

If the purchase of the lands will not improve navigable streams, 
notwithstanding the same are tiken for national forest purposes, it is 
not constitutional. There is no constitutional means for the United 
States to acquire lands unless it is necessary and proper to carry into 
execution some one of the enumerated express powers of government, 
and then strictly within the construction given by Marshall, C. J. 
Can it be said that the United States can enter any State and acquire 
lands for public parks? if not, th3 United States can not enter a 
State and take lands for forest purposes. 

If the primary purpose is to improve navigation, Congress can de- 
clare to what extent the improvement shall be made, and, having exer- 
cised its discretion, the courts can not go behind it. But when Con- 
gress continues the exercise of its powers, improving navigation to 
the extent of declaring that there shall be taken for national forest 
purposes lands more valualile for the regulation of stream flow than 
for any other purpose, this discretion can be questioned in the courts. 
At the outset, therefore, it becomes the duty of Congress to consider 
whether such action is constitutional. Whether this high duty as- 
signed to it is being executed in a manner most beneficial to the peo- 
ple. Whether the acquisition of the land is legitimate. Is it an honest, 
fair, and constitutional exercise of power? Is the acquisition of the 
lands necessary for the improvement of navigation? 

As suggested in Kansas v. Colorado, if this is necessary for the wel- 
fare of the people let us amend the Constitution, but do not violate 
great principles of constitutional law under the guise of regulating 
commerce. The power of Congress is ample to satisfy the wants of 
the people, as far as regulating commei'ce is concerned, but not broad 
enough to acquire lands for forestry purposes. 

In answer to the foregoing resolution of inquiry the committee 
submit the following: 

'"''Jiesol'ved, That the committee is of the opinion that the Federal 
Government has no power to acquire lands within a State solely for 
forest reserves; but under its constitutional power over navigation the 
Federal Government may appropriate for the purchase of lands and 
forest reserves in a State, provided it is made clearly to appear that 
such lands and forest reserves have a direct and substantial connection 
with the conservation and improvement of the navigabilit}' of a river 
actually navigable in whole or in part, and that any appropriation 
made therefor is limited to that purpose. 

^'' Resolved^ That the bills referred to in the resolutions of the House 
(H. R. 10456 and H. R. 10457) are not confined to such last-mentioned 
purpose and are therefore unconstitutional." 



VIEWS OF RICHARD WAYNE PARKER. 

The resolution adopted by the committee is as follows: 

Resolved, That the committee is of the opinion that the Federal Government has 
no power to acquire lands within a State solely for forest reserves; liut undei' its 
constitutional power over navigation the Federal Government may appropriate for 
the purchase of lands and forest reserves in a State, provided it is made clearly to 
appear that such lands and forest reserves have a direct and substantial connection 
with the conservation and improvement of the navigability of a river actually navi- 
gable in whole or in part, and that any appropriation made therefor is limited to 
that purpose. 

Resolved, That the bills referred to in the resolutions of the House (H. R. 10456 
and H, R. 10457) are not confined to such last-mentioned purpose and are therefore 
unconstitutional. 

I agree with the resolution adopted by the committee that the bills 
submitted are unconstitutional, that the important dut}' of establish- 
ing- and maintaining forest reserves within each State is for that State, 
and that the United States has no interest even in the flow of streams, 
except for the regulation of commerce, including the maintenance, 
impi'ovement, and construction of navigable channels, whether natural 
or artificial, which may be used in interstate and foreign commerce; 
but I find myself unable to agree that in the interests of navigation 
the United States can purchase and control thousands of square miles 
of dry land and take that land out of the control and taxable jurisdic- 
tion of the several States. It is not to my mind at all clear that such 
power was given by the Constitution or can be included within the 
power to regulate commerce; nor is it at all clear that any State legis- 
lature has the right to convey' away part of the State for purposes not 
within the United States Constitution and to bar all future legislatures 
and the people of the State from the benefits resulting from improve- 
ment and taxation of those lands. 

No one can exaggerate the importance of the establishment and 
maintenance of forest reserves, especially upon the headwaters of our 
various rivers. Their necessity is being realized by all the States. 
In New York and New Jersey the mountain area is fast being segre- 
gated for the water supply of great cities. The roots of the monarchs 
of the forest hold back rainfall, regulate and even the fiow of streams, 
moderate freshets, protect the slopes from wash and waste and the 
river bottoms and channels from deposits of sand and gravel, and pre- 
serve a flow for the dry season. Forests even seem to temper the 
climate, and they constantly lay by stores of lumber that is becoming 
more and more valuable every day. These are great public considera- 
tions, but, like many other public matters, they seem to belong to the 
several States. It is true that, directly or indirectly, floods and freshets 
from the headwaters will affect the channel and navigation of a stream 
and may have to be provided against. Such provision by engineering 
works on the streams, as by dams, ponds, etc., is certainh' within the 

15 



16 LANDS FOR NATIONAL FOREST PURPOSES. 

power of the United States, whose rights over navigable channels used 
in interstate and foreign commerce are paramount for the construction, 
improvement, and maintenance of such channels. 

There seems, however, to be a recognized legal distinction between 
rights in the stream and rights on the land whose surface sheds the 
rainfall into that stream. We may note examples. 

No action lies by any person against his neighbor for How of surface- 
Avater. 

No action lies for changes in the amount or character of stream flow 
by ordinary use of the land higher up, such as clearing, tillage, etc., 
even if the stream be nuiddicd so as, for instance, to damage a paper 
mill. These principles are established in a host of cases, wherein it 
was held that every man's right is subject to the right of his neighbor 
to use his own property in the ordinary way. In like manner it may 
well be held that the rights of the United States in the waters are sub- 
ject to the rights of the people of the various States to use the dry land 
in ordinar}^ wa3^s, as they ma}^ deem proper, and that a grant of power 
to construct navigable waterwa^^s ma}^ not be used to divest them of 
that land except so far as it is necessary to engineering work con- 
nected with such waterways. By the act of April 28, 1888 (25 Stat. 
L. , IM), any land may be acquired needed to maintain, operate, or 
prosecute work tor the improvement of rivers and harbors for which 
provision has been made by law. This statute is (juoted in Mr. Brant- 
ley's views, page 80, and seems to cover the entire jurisdiction of the 
United States. If it be true that headwater forests are land that is so 
needed, the claim can be made under this statute in court. To my 
mind it is certainly doubtful, and I can not concur in the opinion of 
the committee on this point. 

It seems still more a question whether any State can be divested by 
the legislature of its control over its territory. The importance of 
mountain land to every State is growing day by day, if only for 
aqueducts. The State holds the rainfall and streams as a sacred trust 
for its own citizens, whose life depends upon a daily supply of water. 
This principle has just been laid down b}^ the Supreme Court in the 
case of the State of New Jersey against the Hudson County Water 
Company. It can never be foreseen what value may lie in territory 
which the State is asked to grant away and put out of the march of 
improvement. 

For these reasons I am unable to concur in so much of the resolu- 
tion adopted by the committee as declares the power of the United 
States to acquire forests within the States in aid of navigation. The 
question is at least doubtful. 

To restate the matter briefly: 

The United States have no interest in the rivers except for purposes 
of navigation, and it may fairly be said that the rivers of the Atlantic 
slope are not navigable above the tidal flow. 

It is very hard to see how buying the whole surface of the ground 
is a question of navigation. There has to be some distinction between 
land and water. Of course the building of banks and dams, the dredg- 
ing or digging of the bottom, new channels, or even dams for water 
supply to a canal are all matters which require the purchase of land, 
but this is for works on the stream. It is going beyond anything 
which has ever been hinted to suggest that because the water that falls 



LANDS FOR NATIONAL FOREST PURPOSES. 17 

from the -skies runs off the surface into navigable streams that there- 
fore this surface becomes a mere incident of navigation. The United 
States is a (rovernment of limited powers. In this particular i-espect 
it stands in precisely the same position as if it had been authorized b}" 
the State to control, maintain, improve, and build navigable water- 
ways anywhere within the State. If these powers were given to a 
corporation, together with the great governmental power of eminent 
domain, it could take whatever land should be found necessary for 
channels or works of navigation, including dams, ponds, feeders, banks, 
new channels, or cut-oifs, but such a company would certainly not have 
the power to condemn and take dry ground not needed for these works 
on the theory that the rainfall ran otf this ground into their canals. 
Such a power would mean that they could shut up whole sections of 
that State against settlement, improvements, and increased taxable 
value. Such powers would not be implied in such a grant, nor should 
they be implied in the grant to the United States by the Constitution. 
It is truly said that clearing the ground increases freshets and 
encourages the formation of bars to the injury of navigation. Tillage 
does the same, perhaps to a greater extent. So does building a city, 
paving streets, roofing the houses, and all the devices by which we 
turn the whole rainfall into the streams as soon as engineering can 
send it there. The influence upon navigation in these cases is "direct 
and substantial," but it can hardly be asserted that therefore the 
United States could acquire the farm or the cit}^, although the com- 
mittee resolution holds that the Federal Government may appropriate 
''for the purchase of lands * * * in a State, provided it is made 
clearly to appear that such lands have a direct and substantial con- 
nection with the maintenance and improvement of the navigability of 
a river actuall}^ navigable in whole or in part." It has been held that 
the United States can have no title in docks, wharves, and piers, or in 
the soil under the river, except for engineering works to aid navi- 
gation. The same principle applies, and "control stops with the 
shore. " 

Richard Wayne Parke. 

H. Rept. 1514, 60-1 2 



VIEWS OF MESSRS. LITTLEFIELD, DIEKEMA, AND BAMON. 

No money can be constitutionally appropriated from the Federal 
Treasury except for the accomplishment of a Federal purpose, the 
proper discharge or exercise of a Federal function. It has long- been 
settled that the Federal Government is a Government of granted, 
enumerated powers, under which only such undefined powers can 
be exercised as are " appropriate and plainly adapted " to the effect- 
ive practical exercise of the granted, enumerated powers. (Kansas 
V. Colorado, 206 U. S., 88.) 

When a project is suggested as the subject-matter of a Federal ap- 
propriation, the only question to be determined is, does the project 
come fairly within the scope of these granted enumerated powers 
or the undefined powers " appropriate and plainly adapted to " their 
effective practical exercise. If it does not, then the Federal Govern- 
ment has no constitutional power to appropriate the public money to 
accomplish such a purpose. The mere size of a project, the fact that 
it involves imhiense values, affects millions of people, is distributed 
throughout the whole geographical area of the United States, leading 
the unintelligent and uninformed for those reasons to describe it as 
national, does not even remotely tend to establish the fact that it is 
included within any granted enumerated power or an undefined 
power " appropriate and plainly adapted to " its effective and prac- 
tical exercise. 

Bigness no doubt appeals to the imagination and engenders desire 
for Federal control, but this consideration has no place in determining 
a result which depends upon the exercise of the reasoning faculties. 
The fact that the project is large or small, unimportant or impor- 
tant, does not reach the threshhold of the discussion in determining 
whether it is included in a granted power. Xor is it a question as 
to whether certain powers could be more advantageously and effec- 
tively exercised by the Federal Government, and therefore ought to 
have been granted. It is not a question as to what ought or might 
have been granted; the only question is what is the power that was 
granted. It is claimed and it is true that the preservation of the 
forests by the application of scientific methods of conservation is 
essential to the maintenance of an adequate supply of timber, lumber, 
and fuel, etc., and means the preservation of natural resources of 
almost incalculable value. It is also claimed, and we think correctly, 
that the preservation of the forests is of very great importance in the 
development, maintenance, and conservation of water powers along 
the streams that have their rise in the watersheds covered b_v these 
forests. Our attention has not been called to, and we have not been 
able to find, any power granted to the Federal Government to which 

18 



LANDS FOR NATIONAL FOREST PURPOSES. 19 

either directly or by reasonable implication or necessary inference 
either of these purposes may with any propriety be referred. 

Moreover it seems clear that the Government can only constitu- 
tionally acquire property for a constitutional Federal purpose, which 
clearly constitutes a public use, and therefore what it can constitu- 
tionally acquire by purchase it also has the right to acquire by the 
■exercise of eminent domain. Certainly eminent domain can not be 
exercised except for a public use. Measured by this standard the 
purpose disclosed in the bills referred to in the resolution (H. R. 
10456, H. R. 10457 — they are identical in terms) is clearly not a 
Federal purpose and would not justify any appropriation. The pur- 
pose upon which they are predicated is, section 1, " To acquire for 
National forest inirposes " and in section 3, " Shall have consented 
to the acquisition of such land by the United States for National 
forest purposes.'- We are unable to find, and our attention has not 
been called, to any grant of power to the Federal Government which 
includes even indirectly these purposes. (206 U. S., 46.) It is, how- 
ever, claimed that although these bills do not proceed upon that 
hypothesis, that the appropriation can be justified on the ground 
of the relation of the forests on the watershed, to the navigability 
of the streams that have their sources in such watersheds. 

It is said that the deforesting of the watersheds precipitates into 
the streams soil and silt that is carried downstream until it accumu- 
lates in such quantities as to substantially obstruct navigation, and 
make it necessary to remove such obstruction in order to preserve 
their navigability; and that the watershed when properly covered 
with forest retains the rainfall, so that it is gradually distributed 
throughout the 3'ear, and thus increases the flow in navigable portions 
of the river, so as to preserve their navigability when otherwise they 
would be unnavigable during the dry portions of the year, and that 
for the purpose of thus protecting and preserving the navigability of 
the navigable portions of the river. Congress can make these appro- 
priations for the acquisition and control of the forests on the water- 
sheds. The control of the navigable waters of the United States has 
been recognized as within the Federal jurisdiction and subject to all 
necessary appropriate legislation in a long line of decisions from (not 
to go farther back) Gilman v. Philadelphia (3 AVall., 724), in which 
the court said : 

Commerce includes iiavisation. The power to regulate coiimierce comprelieuds 
the control for that purpose, and to the extent necessary, of all the navigable 
rivers of the Ignited States which are accessible from a State other than those 
in which they lie. For this purpose they are the public property of tlie nation, 
and subject to all the requisite legislation by Congress. This necessarily in- 
cludes tlie power to keep these open and free from any obstruction to their navi- 
gation interposed by the States, or otlierwise ; to remove such olistrnctious where 
they exist; and to provide, Iiy such sanctions as they deem proper, against the 
occurrence of the evil and for the punishment of the offenders. 

to Kansas r. Colorado (sw^r«),, where the court denied the jDetition of 
the United States to intervene to protect its alleged interests in the 
irrigation of arid lands, holding that the United States had no con- 
stitutional power to provide for the irrigation of lands other than its 
own, the court expressly stating that such denial was — 

without prejudice to the rights of the United States to take such action as 
it shall deem necessary to preserve or improve the navigability of the Arkan- 
sas River. (117.) 



20 LANDS FOR NATIONAL FOREST PURPOSES. 

The power of the Federal Government to remove obstructions 
from navigable rivers, either by dredging, removal of rocks and 
ledges, and compelling necessary changes in the construction of 
bridges, is repeatedly exercised and universally conceded. That the 
exercise of this power is not confined to the portion of the stream 
that is within the navigable limits, but extends to obstructions in 
existence or contemplated, above the point of navigability, is settled 
by the case of United States v. Rio Grande Irrigation Company. 
(174 U. S., 690.) This was a case where the United States, by the 
Attorney-General, filed a bill in equity to restrain the defendants 
from constructing a dam across the Rio Grande River in the Terri- 
tory of New Mexico, and it was conceded that the Rio Grande River 
in the limits of New Mexico was not navigable. 

The court below denied the praj^er and dismissed the bill and this 
decision was reversed and the case sent back, with instructions to the 
court below — 

to order au inquiry into ttie question as to wlietber tlie intended acts of the 
defendants in the construction of a dam and in appropriating the waters of 
the Eio Grande will substantially diminish the navigability of that stream 
within the limits of present navigability ; and if so, to issue a decree restraining 
these acts to the extent that they will so diminish. 

In the course of the opinion by Mr. Justice Brewer (which was 
unanimous) the court, after referring to the fact that the city of New 
York had appropriated the waters of the Croton River, a nonnavi- 
gable river and a tributary of the Hudson River, and stating that 
it could do so without question "' unless thereby the navigability of 
the Hudson should be disturbed." used as a significant illustration 
of the power of Congress the following language : "^ On the other 
hand, if the State of New York should, even at a place above the 
limits of navigabilitj^, by appropriation for any domestic purposes, 
diminish the volume of water which, flowing into the Hudson, make 
it a navigable stream, to such an extent as to destroy its navigability, 
imdoubtedly the jurisdiction of the National Government would arise 
and its power- to restrain such approiDriation be unquestioned." (709.) 

In United States v. Lynah (188 U. S., 445), it appeared that the 
United States for the purpose of improving the navigability of the 
Savannah River constructed '' certain dams, training walls, and other 
obstructions " which it was claimed flooded the lands belonging to 
Lynah so " as to substantiallj^ destroy their value." The question in 
the case was whether " the Government in the exercise of its powers 
of eminent domain and regulation of commerce " had taken the 
property of the plaintiff below and should make compensation there- 
for. It is obvious that if the Congress had no constitutional power 
to improve the navigability of the river by holding back its flow- by 
the dam, its acts would have been tortious and not the legal basis for 
the exercise of the right of eminent domain. The case was elabo- 
rately argued and there was a vigorous dissenting opinion by some 
of the ablest members of the court, the majority holding, however, 
" that there has been a taking of the lands for public uses, and that 
the Government is under an implied contract to make just compensa- 
tion therefor." There is is no intimation in either the arguments or 
the opinions that there was any question as to the right of the Gov- 
ernment to erect and maintain the dam for the purposes indicated 
and the case must have proceeded upon the theory that exercise of 



LAITDS FOR NATIONAL FOREST PURPOSES. 21 

such a right was a constitutional exercise of power. Indeed, the 
minority opinion in substance declares that the damage was " caused 
by the lawful exercise of the United States of its power to improve 
navigation," but insists that it was " damnum absque injuriae." 

We may therefore consider it settled that the United States may 
constitutionally expend money in damming the waters of a river to 
improve its na\agability. As the Government has the right to take the 
land of a private indi\ddual at one point in a river by the exercise 
of the right of eminent domain, for the purpose of improving its navi- 
gability, it is difficult to see why it can not acquire the land of other 
individuals, at any other point on the river from its source to its 
mouth, bj' purchase or eminent domain (involuntarv^ sale by the 
owner), for the same purpose to accomplish the same result, especially 
in view of the fact that it is held that the construction of a dam may 
be restrained, if it impairs the navigability of the river, though it 
may be located above the navigable point in a nonnavigable part of 
the river. The particular means used can not determine the constitu- 
tionality of the exercise of the power. If the means are appropriate 
the result accomplished is the test. If an artificial reservoir may be cre- 
ated and maintained at one point, no reason is perceived why a natural 
reservoir may not be restored and maintained at another point, if the 
purpose and result be the same. The Government has undoubted 
power to remove obstructions from the navigable part of the river, to 
prevent obstructions from being placed therein or over the same, to 
prevent obstructions in the nonnavigable portions that impair its 
navigability. It would seem to follow that if reforesting the water- 
shed at its source was an appropriate means " plainly adapted to 
that end " of preventing the depositing in the river of accumulations 
that would obstruct its navigable portion, that Congress would have 
the right to acquire and control them for that purpose. 

The foresting of the watershed at the source of a river and the pre- 
vention of the accumulation of obstruction within its navigable limits, 
or the improvement of its navigability by increasing the flow of the 
water therein during the dry season must, in our judgment, be some- 
thing more than theoretical, technical, fanciful, or negligible. It 
must be physical, tangible, actual, and substantial, demonstrable by 
satisfactory competent testimony, in order to justify an appropria- 
tion for that purpose. The protection or the improvement of the navi- 
gability of the river must also be the real, effective, sole, and not the 
incidental, purpose of the appropriation. It would not justify an ap- 
propriation when the real purpose is the conservation of the supply 
of the raw material for forestry products, or the development of 
water powers and the protection or improvement of the navigability 
of the river is only theoretical or incidental thereto. The improve- 
ment or conservation of the navigability of the river must be the 
only purpose for which the appropriation is made. In such case the 
fact, if it be a fact, that other useful purposes are also served, does 
not militate against the exercise of the power to accomplish the real 
purpose of the appropriation, as a matter of law. As a matter of 
law, such purposes can not be a part of the purpose, although as a 
matter of fact they may be among the necessary incidentals" of the 
result. In this connection what constitutes navigability should be 
stated. This is well settled. 



22 LANDS FOE NATIONAL FOREST PURPOSES. 

In The Daniel Ball (10 Wall., 463) the court said— 

those rivers must be regarded as public navigable rivers in law wbicli are- 
navigable in fact, and they are navigable in fact wben they are used or are 
susceptible of being used in their ordinary condition for highways or com- 
merce, over which trade and travel are or may be conducted in the customary 
modes of trade and travel on water, and they constitute navigable waters of the 
United States within the meaning of the acts of Congress in contradistinction of 
the navigable waters of the State, when they form in their ordinary conditions 
by themselves or by uniting with other waters a continued highway over which 
commerce is or may be carried on with other States or foreign countries in the 
customary modes in which such commerce is conducted by water. * * * 

And — 

It would be a narrow rule to hold that in this country unless a river was 
capable of being navigated by steam or sail vessels it could not be treated as a 
public highway. The capability of use by the public for purposes of transporta- 
tion and commerce affords the true criterion of the navigability of a river, 
rather than the extent and manner of that use. If it be capable in its natural 
state of being used for purposes of commerce, no matter in what mode the 
commerce may be conducted, it is navigable in fact and becomes in law a public 
river or highway — 

the court said in The Montello (20 Wall., 441) . These cases have been 
cited and approved in numerous cases, which are collected in notes to 
United States Eeports, vol. 7, p. 366, and vol. 8, p. 328. Whether 
the deforesting of the land described in the bill has any physical and 
tangible connection with the navigability of the rivers which have 
their sources in the respective watersheds was a subject of controversy 
before our committee, and upon that question of fact we express no 
opinion, but upon the hypothesis above set forth we are of the opinion 
that for that specific purpose, and that purpose only, an appropriation 
can lawfully be made, and that the legislation therefor must in terms 
be confined to that purpose. It also follows that no land can lawfully 
be acquired in excess of what is necessary for the carrying out of 
that purpose, and the bills before us are not properly limited as to 
the amount that can be lawfully acquired for the one constitutional 
purpose for which the appropriation can be made. 

C. E. LlTTLEFIELD. 
G. J. DiEKEMA. 

Henry Bannon. 

I concur with the foregoing- v-iews except that I regard it as at least 
very doubtful whether the United States can in any event acquire land 
in the several States for forest purposes. I file separate views on that 
subject. 

Richard Wayne Parker. 



VIEWS OF MR. BRANTLEY. 

The Committee on the Judiciary has before it House resolution 
No. 208, which reads as follows — 

Whereas the President, in his message to the Congress at its present session, on 
December third, nineteen hundred and seven, makes the following recommendation: 

" We should acquire in the Appalachian and White Mountain regions all the forest 
lands that it is possible to acquire for the use of the nation. These lands, because 
they form a national asset, are as emphatically national as the rivers which they feed, 
and which flow through so many States before they reach the ocean;" and 

Whereas thei-e have been introduced into the House of Representatives bills for 
the acquirement of national forests in the Southern Appalachian Mountains and the 
White Mountains, the same being H. R. 10456 and H. R. 10457, which provide as 
follows: 

"That the Secretary of Agriculture is hereby authorized and directed, in his dis- 
cretion, to acquire for national forest purposes, by purchase or gift, lands more 
valuable for the regulation of stream flow than for other purposes, and situated on 
the watersheds of navigable streams in the Southern Appalachian Mountains within 
the States of Maryland, Virginia, West Virginia, North Carolina, South Carolina, 
Georgia, Alabama, Kentucky, and Tennessee, and in the White Mountains within 
the States of New Hampshire and [Maine. * * * 

"That the Secretary of Agriculture may do all things necessary to secure the safe 
title in the United States to the lands to be acquired under this Act; but no pay- 
ment shall be made for any such lands until the title shall be satisfactory to the 
Attorney-General and shall be vested in the United States. 

"That the sum of Ave million dollars is hereby appropriated to carry out the pro- 
visions of this Act, out of any moneys in the Treasury not otherwise appropriated, 
and said sum shall be available immediately and until expended for said purpose: 
Prorided, That the Secretary of Agriculture shall each year make a detailed report 
to Congress of the lands purchased under this Act, and the cost thereof; " Therefore 
be it 

Resolved, That so much of the President's message, above referred to, which relates 
to the acquisition of lands in the Southern Appalachian and White mountains "for 
the use of the nation" be referred to the Committee on the Judiciary of the House 
of Representatives, together with the questions involved in the bills referred to, 
directing the Secretary of Agriculture to acquire for national forest purposes lands in 
theSouthern Appalachian and White mountains, within the States named, with instruc- 
tions to said committee to report fully at an early date their views as to the power of the 
Federal Government by legislation to acquire, by purchase, condemnation, or other- 
wise, the lands referred to in said bills, situated in the States mentioned, and to 
appropriate money therefor, and also what power and authority the Federal Govern- 
ment has by legislation to acquire for the purpose of forest reserves lands within a 
State wherein the Government of the United States has no public domain, and to 
make appropriation therefor. 

It is to be noted that said resolution refers to <^he committee a cer- 
tain portion of the President's messag-e, together with certain ques- 
tions involved in two House bills, to wit, H. R. 10456 and 10457; that 
is, the questions involved in "Directing the Secretary of Agriculture 
to acquire for national forest purposes lands in the Southern Appala- 
chian and White mountains within the States named." The resolution 
then instructs the committee to report fully at an early date their 
views, first, ''as to the power of the Federal Government by legisla- 
tion to acquire by purchase, condemnation, or otherwise, the lands 
referred to in said bills, situated in the States mentioned, and to appro- 
priate money therefor;" and, second, "What power and authority the 

23 



24 LANDS FOR NATIOlSTALr FOREST PURPOSES. 

Federal Government has by legislation to acquire for the purpose of 
forest reserves lands within a State wherein the Government of the 
United States has no public domain, and to make appropriation 
therefor. " 

The power of the General Government to acquire land in a State by 
purchase, condemnation, or otherwise being unquestioned, where the 
same is necessary to some governmental use, authorized by the Con- 
stitution, it becomes necessary in the very outset of the investigation 
directed to be made to inquire as to the uses for which it is proposed 
to acquire the land and the forest reserves referred to in said resolution. 
In McCulloch v. Maryland (4 Wheaton, 421) it is said: 

Let the end be legitimate, let it be within the scope of the Constitution, and all 
means which are appropriate, which are plainly adequate to that end, which are not 
prohibited, but consistent with the letter and spirit of the Constitution, are constitu- 
tional. 

Our inquirj^ mvist be, first, as to whether the owning of lands and 
forest reserves in a State by the General Government is itself the end 
sought to be attained by acquiring them or whether such acquiring is 
designed as a means to some other end. This inquiry must l)e deter- 
mined before we can pass on the question of whether the end is legiti- 
mate and within the scope of the Constitution. The importance of this 
inquiry is further apparent in the light of the statement of the Supreme 
Court in 117 U. S., 158, in the case of Van Brocklin v. Tennessee, to wit: 

The United States do not and can not hold property as a monarch may for private 
or personal purposes. All the property and revenues of the United States must be 
held and applied as all taxes, duties, imjiosts, and excises must be laid and collected 
"to pay the debts and provide for the common defense and general welfare of the 
United States." 

Unless, therefore, it shall appear that said lands and forest reserves 
are proposed to be held and used in some way for the general welfare, 
under some power delegated to Congress by the Constitution, it 
requires no argument to demonstrate that Congress has no power to 
acquire or to hold them. 

THE PROPOSED USE OF FOREST RESERVES. 

Directing our inquiry, therefore, in the first place to the proposed 
uses of the said land and forest reserves, it is essential to carefulh^ 
scrutinize all the language of the said House bills 10456 and 10457, 
and as well the history of said ])ills, in so far as the same is shown in 
the proceedings of the previous Congress and in the results of the act 
of the previous Congress. Proceeding with the investigation in this 
way, we find that the agricultural bill approved March 4, 1907, required 
the Secretary of Agriculture to investigate the watersheds of the 
Southern Appalachian' and White Mountains — 

and to report to Congress the area and natural conditions of said watersheds, the 
price at which the same can be purchased by the Government, and the advisability 
of the Govermnent purchasing and setting apart the same as national forest reserves 
for the purpose of conservinar and regulating the water supply and flow of said 
streams in the interest of agriculture, water power, and navigation. 

The important thing here to be observed is that the Fiftj' -ninth 
(yongress in ordering said survey distinctly directed that information 
be furnished as to the advisabilit}' of acquiring the proposed forest 
reserves, not as an end in itself. ))ut as a means to other specified 
ends, to wit, "for the purpose of conserving and regulating the water 



LANDS FOR NATIOISrAL FOREST PURPOSES. 25 

supph' and flow of said streams in tiio interest.of agriculture, water 
power, and navig-ation." 

It is a just assumption that the Fift3^-ninth Congress felt authorized 
in appropriating money for this surve}", and it is to be noted that one 
of the ends sought to be achieved by the surve3% whatever may be 
said of the others, was clearlj' within the Constitutional power of 
Congress and that end is the conserving and regulating the water 
supply of certain streams in the- interest of navigation. 1 have 
examined the report of the Secretary of Agriculture made in pur- 
suance of said direction of the Fifty-ninth Congress. The same is 
embraced in Senate Document No. 91, Sixtieth Congress, first ses- 
sion. In this report the Secretary states among other things, that 
"all the waters gathered by the Southern Appalachian and White 
Mountains Hows to the sea through navigable rivers,*" and he submits 
an argument supported by facts presented by him that the preserva- 
tion of the forests in these mountains would equalize the How of these 
rivers, tending to the avoidance of floods and freshets and to a greater 
volume of water in time of drought. His argument is that forest 
reserves in these mountains would aid navigation in all streams hav- 
ing their source in these mountains. The committee does not under- 
take to pass judgment on this argument, but refers to it in order to 
determine whether or not there is any Constitutional purpose sought 
to be accomplished b}" the proposed forest reserves. Gentlemen, pre- 
sumably competent to advise on such matters have appeared before 
the committee and urged that the preservation of the forests on the 
Southern Appalachian and White Mountains would materially aid the 
navigability of certain navigable rivers, but as just stated, the com- 
mittee does not feel that it has jurisdiction or is called upon to report 
a conclusion on the facts involved in this argument. 

We next take notice of H. R. 10456 and H. R. 10457, the language 
in each being the same. The description of the lands to be acquired 
under these bills is, first, "" lands more valuable for the stream 
flow than for other purposes," and, second, lands "situated on the 
watersheds of navigable streams.'^ This language clearl}" indicates 
a relation of some kind between these lands and the streams having 
their origin in them and a purpose to utilize that relation in the inter- 
est of such streams. Provision is made in the bill for allowing private 
parties to control an}- minerals that may be on the lands acquired, and 
as well that merchantable timber may be removed by such parties 
under regulations to be prescribed by the Government. Provision is 
also made for private parties to obtain lands " chiefly valuable for 
agriculture," that the Government may chance to acquire in its pur- 
chases of forest lands. All these provisions point directly to the con- 
clusion that one of the purposes of these bills, if not the primary 
purpose, is to control the watersheds of the streams rising in these 
mountains in the direct interest of these streams. The exclusion of 
minerals, merchantable timber, and agricultural lands from the reserves 
leaves no other conclusion to be fairly reached. That this conclusion 
is correct, is shown, I think, in the language of section 10 of the bills, 
to wit: "That the Secretary of Agriculture may for further protec- 
tion of the watersheds of said navigable streams," do certain other 
things. In other words, all that precedes in the bills is for the purpose 
of protecting the watersheds of navigable rivers, and what follows in 
section 10 is for the further protection of such watersheds. 



26 LANDS FOR NATIONAL FOREST PURPOSES. 

THE REAL INQUIRY. 

Assuming- that this conchision as to the purpose of these bills is cor- 
rect, the real inquiry that is presented to the committee relates to 
the power of Congress under the Constitution to acquire lands and 
establish forest reserves in a State where no public domain now exists 
for the purpose of improving or adding to the navigabilit}" of certairt 
navigable rivers. The committee is not called upon to determine 
whether, as a matter of fact, the growth of forests or the preservation 
of forests on mountains would aid the navigability of navigable rivers 
having their source in such mountains. That question, presumably, 
the House has reserved for its own decision. The committee is called 
upon to report simply on the question of power, assuming- the exist- 
ence of the facts necessary to the exercise of the power. The power 
of Congress over navigation and to appropriate raone\^ for the improve- 
ment of rivers and harbors has been so universally acquiesced in for 
so long a period of time as to be now unquestioned. This power is 
derived from the commerce clause of the Constitution. As far back 
as 3 Wallace, 72 i, in the case of Gilman v. Philadelphia, the kSupreme 
Court said: 

Commerce includes navigation. The power to regulate commerce comprehends 
the control for that purpose and to the extent necessary of all the navigable waters 
of the United States which are accessible from a State other than that in which they 
lie. For this purpose they are the public property of the nation and subject to all 
the requisite legislation by Congress. This necessarily includes the power to keep 
them open and free from any obstruction to their navigation, interposed by the State 
or otherwise; to remove such obstructions when they exist, and to provide bv such 
sanctions as they may deem proper against the occurrence of the evil and for the 
punishment of offenders. For these purposes, Congress possesses all the power 
which existed in the States before the adoption of the National Constitution and 
which have always existed in the Parliament in England. It is for Congress to 
determine when its full power shall be brought into activity and as to the regulation 
and sanction which shall be provided. 

The Secretary of Agriculture has informed us that all the navigable 
rivers having- their source in the mountains referred to, and that it is 
claimed would be benetited by the proposed forest reserves, " flow to 
the sea," They are all therefore "'accessible from a State other than 
those in which they lie" and are " subject to all the requisite legisla- 
tion by Congress" for their control in the regulation of commerce. 
Congress having the power " to keep them open and free from any 
obstructions" and "to remove such obstructions," and having the 
power " to provide by such sanctions as they may deem proper against 
the occurrence of the evil," and also "to determine when. its full 
power shall be brought into activit}^," and also to determine " as to 
the regulation and sanctions which shall be provided," it would seem 
to be incontrovertible under this authority that Congress has the power 
to acquire and own the proposed forest reserves if in its judgment such 
forest reserves would aid navigation. The question, it seems to me, is 
one of discretion, not one of power. 

The Savannah River is one of the rivers that it is claimed would be 
directly benefited by the proposed forest reserves. In the case of 
South "Carolina v. Georgia et al. (94 U. S., 4), the second headnote 
reads: "Congress has the same power over the Savannah River that 
it has over the other navigable waters of the United States." 



LANDS FOK NATIONAL, FOKEST PURPOSES. 27 

In the opinion the court says, page 9: 

That the power to regulate interstate commerce and commerce with foreign 
nations, conferred ui)on Congress by the Constitution, extends to the control of nav- 
igable rivers between States— rivers that are ac(;essible from other States at least to 
the extent of improving their navigability— has not been questioned during the 
argument nor could it be with any show of reason. From an early period in the 
history of the (rovernment it has been so understood and determined. 

The court quotes the extract from Gihuan r. Philadelphia (3 Wal- 
lace, 724) just above and sa^^s: 

Such has uniformly been the construction given to that clause of the Constitution 
which confers upon Congress the power to regulate commerce. 

In a Wisconsin case reported in 9(3 U. S., 387, the same involving- 
certain river and harbor improvements and the laws of Congress in 
reference to them, the court in speaking of these laws, saj^s: 

They amount to the declaration of the Federal Government that we here interpose 
and assert our power. We take upon ourselves the burden of this improvement 
which properly belongs to us and that hereafter this work for the public good is in 
our hands and subject to our control. Nor can there be any doul)t that such action 
is within the constitutional power of Congress. It is a power which has been exer- 
cised ever since the Government was organized under the Constitution. 

In the celebrated case of Gibbons v. Ogden (9 Wheaton), the court 

said, page 190: 

The power over commerce, including navigation, was one of the primary objects 
for which the people of America adopted their Government, and must have been con- 
templated in forming it. 

Again, on page 195, the court says: 

The deep streams which penetrate our country in every direction pass through the 
interior of almost every State in the Union, and" furnish the means of exercising this 
right. If Congress has the power to regulate it, that power must be exercised wher- 
ever the subject exists. 

CONGRESS HAS POWER BEYOND NAVIGABLE PORTIONS OF STREAMS. 

The power of Congress over navigation extends beyond that portion 
of a navigable stream that is actually navigable, and it covers every 
navigable river in the United States. "^ Congress long ago exercised its 
power over a navigable rivei- beyond the point of its navigability, and 
the Supreme Court has upheld its act in so doing. 

In the act of September 19, 1890 (26 Stat., 454, paragraph 10), it is 
provided: 

That the creation of any obstruction, not affirmatively authorized by law, to the 
navigable capacity of any waters, in respect of which the United States has jurisdic- 
tion, is hereby prohibited, etc. 

Again, in the river and harbor act of March 3, 1899, in section 10, 
it is provided — 

That the creation of anv obstruction not affirmatively authorized by Congress to the 
navigable capacity of any' of the waters of the United States is hereby prohibited. 

Note must be given to the broader language used in the later act and 
to the substitution of ''authorized by Congress" for "authorized by 
law." Both these laws are construed m a case reported in 174 U. S., 
690. Here a dam was proposed to be erected in the waters of a navi- 
gable river, bat at a point far above where the river was actually 



28 LANDS FOE NATIONAL, FOREST PURPOSES. 

navigable. The United States Government sought to enjoin the build- 
ing of the dam on the ground that it would interfere with the navigable 
portion of the river by decreasing the supply of water. The lower 
court's decision was adverse to the Government. A reversal was had 
in the Supreme Court and the case remanded with directions in which 
there is ordered an — 

inquiry into the question whether the intended act of the defendants in the construc- 
tion of a dam and in appropriating the waters of the Rio Grande will substantially 
diminish the navigability of tliat stream within the limits of present navigability and, 
if so, to enter a decree restraining these acts to the extent that they will so diminish. 

In the opinion, page 703, the court, in speaking of the power of a 
State to permit the appropriation of flowing waters for such purposes 
as it deems wise, said there were two limitations to this power. The 
first, that a State can not in the absence of authority from Congress 
so legislate as to destroy the right of the Ignited -States, as the owner 
of lands bordering on a stream, to the continued flow of the waters; 
the second — 

that it is limited by the superior power of the General Government to secure the 
uninterrupted navigability of all navigable streams within the limits of the United 
States. In other words, the jurisdiction of the General Government over interstate 
commerce and its natural liighways vests in that Government the right to take all 
needed measures to preserve the navigability of the navigable water courses of the 
country, even against any State action. 

The court further discussed the act of September 19, 1890, as amended 
and reenacted July 13, 1892, 27 Stat., 110 (quoted above) and said, 
page 708: 

It was an exercise' by Congress of the power oftentimes declared by the court to 
belong to it of national control over navigable streams. * * * 

It is urged that the true construction of this act limits its applicability to obstruc- 
tions in the navigable portion of a navigable stream, and that as it appears that 
although the Rio Grande may be navigable for a certain distance above its mouth, it 
is not navigable in the Territory of New Mexico, the statute has no applicability. 
The language is general and must be given full scope. It is not a prohibition of any 
obstruction to the navigation, but any obstruction to the navigable capacity, and any- 
thing, wherever done, or however done, within the limits of the jurisdiction of the 
United States which tends to destroy the navigable capacity of one of the navigable 
waters of the United States is within the terms^of the jDrohibition. Evidently Con- 
gress, perceiving that the time had come when the growing interests of commerce 
required that the navigable waters of the United States should be subjected to the 
direct control of the National Government, and that nothing should be done by any 
State tending to destroy that navigability without the explicit assent of the National 
Government, enacted the statute in question, and it would be to improperly ignore 
the scope of this language to limit it to the acts done within the very limits of navi- 
gation of a navigable stream. 

If Congress has the power, as this opinion declares, to legislate against 
obstructions that interfere with the ''navigable capacit}^" of navigable 
streams "wherever done, or however done, within the limits of the 
United States," and regardless of whether done in the navigable por- 
tions of such streams, why has not Congress an equal power to legislate 
in the same way to increase the '"'■ navigable capacity " of such streams? 
If it be a fact that denuding the mountains of their forest results in 
filling up the navigable streams in their navigable portions with silt, 
dirt, or d6bris, causing obstructions therein, why has not Congress the 
same power to prevent the formation of such obstructions that it has 
to remove such obstruction after they have been formed? If Congress 
has the power to remove a dam, placed far above the navigable portion 
of a navigable stream, because it is an obstruction to the navigable 



LANDS FOR NATIONAL FOREST PURPOSES. 29 

portion of the stream, in that it decreases the flow of water, why has 
not Conoress equal power to remove any other obstructions in the 
stream at any point between tiie ending of navigation and the source 
of the stream, if such obstruction decreases the flow of water in the 
navigable portion of such stream? If it be a fact that destroying the 
forests on the mountain side results in a greatly reduced flow of water 
during periods of drought in all streams having their origin in such 
mountains, why has not Congress the same power where such streams 
are navigable to prevent the destruction of such forests that it has 
to prevent a dam at some other point on the nonnavigable portion of 
the stream ? Why is not one thing just as important to be done as 
the other in the interest of navigation? Is not Y)revention more 
important than cure, and particularly so when in all the experience of 
our Government cure l)v dredging has never been anything but a 
temporary cure? In the light of the authority just quoted, there 
appears to be involved in the resolutions referred to the committee, 
only questions of fact and matters of policy. The existence of the 
power inquired about appears to be amply assured. 

The case of Kansas v. Colorado, reported in 206 U. S., 46, is not an 
authority against the existence in Congress of such power, but, on the 
contrary, in so far as it touches this particular question of power, the 
opinion clearly indicates its existence. In this case the Supreme 
Court denied the power of the United States to control the waters of 
a river in a State for the purpose of reclamation of arid lands, the 
court holding that the reclamation of arid lands within a State is not 
within the Constitutional power of Congress. But the court said, 
page 86: 

It follows from this that if in the present case the National Government was assert- 
ing as against either Kansas or Colorado that the appropriation for the purposes of 
irrigation of the waters of the Arkansas was -affecting the nayigability of the dream it 
would become our duty to determine the truth of the charge. But the Government makes 
no such contention. On the contrary, it distinctly asserts that the Arkansas River is 
not now and never was practically navigable beyond Fort Gibson in the Indian 
Territory, and nowhere claims that any appropriation of the waters by Kansas or Colorado- 
affects its navigability. 

In the syllabus, the existence of the specific power being discussed 
is clearly recognized, to wit: 

While Congress has general legislative jurisdiction over the Territories and may 
control the flow of waters in their streams it has no power to control a like flow 
within the limits of a State, except to preserve or improve the navigability of the stream. 

Here is express recognition of the power of Congress, within a 
State, to control the flow of a stream, for the purpose of preserving 
or improving its navigability. 

If it be a fact that a forest on the mountain side will control the 
flow of a stream having its origin in the mountain, and that such con- 
trol will preserve or will improve the navigability of the stream, why 
is not the language quoted direct authority for Congress to preserve 
the forests on such mountain side ? 

The syllabus just quoted from Kansas /". Colorado, amply supported 
a.s it is by the full text of the opinion, furnishes authority for the con- 
tention that Congress has no constitutional power to control the flow 
of a stream within a State for the purpose of aiding agriculture or 
improving water power which are two other alleged purposes of forest 
reserves, as shown in the order for survey contained in the act of 



30 LANDS FOR NATIONAL FOEEST PURPOSES. 

March 4, 1907, ))ut at the same time it furnishes equally strong- author- 
ity for the proposition that Congress may control such stream flow 
for the purpose of preserving or improving the navigability of such 
streams. 

It can not be seriously argued that because Congress in aiding navi- 
gation will at the same time produce other beneticent results, that 
Congress has no power to aid navigation. The control and regulation 
of the flow of water in a stream would undoubtedly improve the value 
of the water power on such stream, but it would to a greater extent 
improve the navigalnlitv of the stream. If such stream was navigable 
there could be no use made of its water power by a State or individu- 
als that would interfere with its "navigable capacity," and its water 
power, controlled as it would be by the State, whatever might be its 
value, would be subservient to the preservation of its navig•abilit3^ If 
b}^ controlling stream flow, freshets and floods could be avoided or 
substantially reduced in volume or in frequency, agriculture would 
undoubtedly be benefited, because agricultural lands would be saved 
the deposits destroying their fertility and left on them by overflows; 
but would not this be a mere incident;' Must Congress be denied its 
undoubted power to improve and preserve the navigability of navig- 
able streams because in so doing there will be other beneficial results? 
Congress has never made an appropriation for any public improve- 
ment in any coramunit}^ whether for harbor improvements or build- 
ings, that has not resulted in benefiting the comnmnity in many ways, 
and yet the appropriation has always been justified because intended 
for a distinct constitutional purpose. 

The incidental benefits in other directions that have followed have 
never stood in the way of an appropriation for a legitimate end. 

PREVIOUS ACTS OF CONGRESS. 

The direct question as to the power of Congress to aid navigation bj^ 
acquiring land within a State to be used as forest reserves has never 
arisen, so far as I am advised; but both Congress and the Sup^reme 
Court have repeatedly recognized the power of Congress to acquire, 
by purchase or condemnation, lands within a State for the purpose 
generally of aiding navigation. 

I am not prepared to advise that this power is limited to any specific 
area of land short of what is actually necessary for the particular con- 
stitutional purpose of aiding navigation. 

The act of April 28, 1888 (25 Stat., 94), reads: 

The Secretary of War may cause proceedings to be instituted in the name of the 
United States, in any court having jurisdiction of sucli proceedings, for the acquire- 
ment by condemnation of ani/ land, right of way, or material needed to enable him 
to maintain, operate, or prosecute work for the improvement of rivers and harbors, 
for which provision has been made by law, such proceedings to be prosecuted in 
accordance with the laws relating to suits for the condemnation of property of the 
States wherein the proceedings may be instituted: Provided, liowerer. That when 
the owner of such land, right of way, or material shall fix a price for the same, which 
in the opinion of the Secretary of War shall be reasonable, he may purchase the 
same at such price without further delay: And provided further. That the Secretary 
of War is hereby authorized to accept donations of lands or material required for the 
maintenance or prosecution of such works. 

In 188 U. S., 445, is reported a case for damages against the United 
States, caused by overflowing lands as the result of putting in dams 
and training walls in the Savannah River. The damages were allowed. 



LANDS FOR NATIONAL FOREST PURPOSES. 31 

In the syllabus, the court says: 

Notwithstandiiijj: that the work causing the injury was done in inij)roving tlie nav- 
igabihty of a navigable river, and by the Constitution Congre-ss is given full control 
over such improvements, the injuries can not be regarded as purely consequential, 
and the Government can not ai)i)ropriate property without being liable to the obli- 
gation created by the fifth amendment of paying just com})ensation. 

Mr. Justice Brewer said, page 464: 

It is earnestly contended in argument that the Government had a right to appro- 
priate this property. This ntni/ lie ronceded, but there is a vast difference between a 
proprietary and a governmental right. * * * Very different from this proprietary 
right of the (government in respect to jtroperty which it OM'ns is its governmental 
right to appropriate the property of individuals. 

All private properti/ Is held subject, to fJie Decessities of (/ureniiiievt. The right of eminent 
domain underlies all such rights of property. The Government may take personal 
or real property, whenever its necessities or the exigencies of the occasion demand. 

Congress has extended its power to nonnavigable waters adjacent to 
navigable waters, and for the express purpose of preventing the navi- 
gable waters from being tilled up with earth and other material, the 
identical purpose that it is claimed forest reserves would serve. In 33 
Statutes, Law 1147, Congress has empowered the Secretary of War — 

to prescribe regulations to govern the transjiortation and dumping into any navigable 
waters or urtters adjacent thereto, of dredgings, earth, garbage, and other refuse mate- 
rials of every kind or description, whenever in his judgment such regulations are 
required in the interest of navigation. 

Congress has extended its jurisdiction to prevent floods in a navi- 
gable river, another purpose that it is claimed forest reserves would 
serve. In 21 Statutes, Law 3S, Congress conferred the power upon 
and made it the duty of the Mississippi River Commission to mature 
among others plans '"to prevent destructive floods." 

THE POWER GENERALLY TO ACQUIRE LAND. 

I stated in the outset that the power of Congress to acquire land in 
a State by purchase or condemnation was unquestioned, provided a 
necessity to acquire it for some legitimate governmental use existed. 

The authorities for this proposition are ample. 

Article 1, section 8, of the Constitution reads: 

Congress shall have power to exercise exclusive legislation in all cases whatsoever 
over such district (not exceeding ten miles square) as may by cession of particular 
States and the acceptance of Congress become the seat of the Government of the 
United States, and to exercise like authority over all places purchased by consent of 
the legislature of the State in which the same shall be for the erection of forts, 
magazines, arsenals, dock yards, and other needful buildings. 

This section, however, is not in any respect a limitation on the power 
of Congress to acquire lands in a State, but is a limitation on the power 
of Congress to ''exercise exclusive legislation." 

In Kohl V. U. S., reported in 91 I. S., 3(^7, 371, the court says: 

The powers vested by the Constitution in the General Government demand for 
their exercise the acquisition of lands in all the States. These are needed for forts, 
armories and arsenals, for navy-yards and light-houses, for custom houses, post- 
offices, and court-houses, and ior other public uses. 

Also — 

No one doubts the existence in the State governments of the right of eminent 
domain — a right distinct from and paramount to the right of ultimate ownership. 
But it is no more necessary for the exercise of the powers of a State government than 
it is for the exercise of the" conceded powers of the Federal Government. That Gov- 
ernment is as sovereign within its sphere as the States are within theirs. True, its 



32 LANDS FOE NATIONAL FOREST PURPOSES. 

sphere is limited. Certain subjects only are committed to it; but its power over 
those subjects is as full and complete as is the power of the States over the subjects 
to which their sovereignty extends. The power is not changed by its transfer to 
another holder. But if the right of eminent domain exists in the Federal Govern- 
ment, it is a right which may iDe exercised within the States, so far as is necessary 
to the enjoyment of the powers conferred upon it by the Constitution. 

In 109 U. S., 518, the court says: 

The power to take private property for public uses, generally termed the right of 
eminent domain, belongs to every independent Government. It is an incident of 
sovereignty and, as said in Boom v. Patterson 98 U. S., 106, requires no Constitutional 
recognition. 

In Fort Leavenworth R. R. Co. v. Lowe (114 U. S., 527), the sylla- 
bus states: 

In the act admitting Kansas as a State, there was no reservation of Federal juris- 
diction over the Fort Leavenworth Military Reservation. The State of Kansas sub- 
sequently ceded to the United States exclusive jurisdiction over the same, "saving 
further to said State the right to tax railroad, bridge, or other corporations, their fran- 
chises and property, on said reservation. ' ' Held, that the property and franchises of a 
railroad company within the reservation was liable to pay taxes in the .State of 
Kansas, imposed according to its laws. 

On page 530, the court after quoting article 1, section 8 of the Con- 
stitution, says: 

This power of exclusive legislation is to be exercised, as thus seen, over places pur- 
chased by consent of the legislatures of the States in which they are situated, for the 
specific purposes enumerated. * * * Purchase with such consent was the only mode 
then thought of for the acquisition by the General Government of title to lands in 
the States. Since the adoption of the Constitution this view has not generally pre- 
vailed. Such consent has not always been obtained, nor supposed necessary, for the 
purchase by the General Government of lands within the States. * * * The con- 
sent of the States to the purchase of lands within them /or the special pmrposes named 
is, however, essential under the Constitution, to the transfer to the General Govern- 
ment, with the title of political jurisdiction and dominion. When lands are acquired 
without such consent, the possession of the United States, unless political jurisdiction 
be ceded to them in some other way, is simply that of an ordinary proprietor. The 
property in that case, unless used as « means to carry out the purposes of the Government, 
is subject to the legislative authority and control of the States equally with the 
property of private individuals. But not only by direct purchase have the United 
States been able to acquire lands they needed without the consent of the States, but 
it has been held that they possess the right of eminent domain within the States, 
using those terms, not as expressing ultimate dominion or title to property, but as 
indicating the right to take private properUi for pablic rises, when needed to execute the 
powers conferred by the Constitution; and that the General Government is not dependent 
upon the caprice of individuals or the will of State legislatures in the acquisition of 
such lands as may he required for the full and effective exercise of its powers. This doc- 
trine was authoritively declared in Kohl ;;. United States, 91 U. S., 367. 

The court, after quoting from various opinions of other courts and 
of Attorney-Generals of the United States, concludes, page 539: 

Where, therefore, lands are acquired in any other way by the United States, 
within the limits of a State than by purchase with her consent, they will hold the 
lands subject to this qualification; that if upon them forts, arsenals, or other public 
buildings are erected for the uses of the General Government, such buildings with 
their appurtena._nces, as instrumentalities for the execution of its powers, will be free 
from any such Interference and jurisdiction of the State as would destroy or impair 
their effective use for the purposes designed. Such is the law with reference to all 
instrumentalities created by the General Government. Their exemption from State 
control is essential to the independence of and sovereign authority of the United 
States within the sphere of their delegated powers. But when not used as instru- 
mentalities, the legislative power of the State over the places acquired will be as full 
and complete as over any other places within her limits. 



LANDS FOR NATIONAL FOREST PURPOSES. 33 

In reference to the particular ca.se before it, the court said, pa^e 539: 

It not being a case where exclusive legislative authority is vested by the Consti- 
tution in the United States, that cession could be accomi)anied with such conditions 
as the State might see tit to annex, not inconsistent with the free and effective use of 
the fort as a military post. 

In answer to the objection that a State has no power to cede away 
her jurisdiction and legislative power over any portion of her terri- 
tory, except as such cession follows under the Constitution from her 
consent to a purchase by the United States foi- some one of the pur- 
poses mentioned in the Constitution, the court says, page 540: 

It is undoubtedly true that the State, whether represented by her legislature or 
through a convention specially called for that purpose, is incompetent to cede her 
political jurisdiction and legislative authority over any part of her territory to a 
foreign country without the concurrence of the General Government. 

But the court says, page 541: 

In their relation to the General Government the States of the Union stand in a 
very different position from that which they hold to foreign governments. Though 
the jurisdiction and authority of the (General Government are essentially different 
from those of the State, they are not those of a different country; and the two, the 
State and. the General Government, may deal with each other in any way they may 
deem best to carry out tJie purposes of tlic Constitution. 

The question presented in Van Brocklin r. State of Tennessee (117 
U. S., 151) was whether lands in the State of Tennessee sold for taxes 
bj" the United States and bought in by the United States could be taxed 
by the State while they were owned by the United States. In a most 
elaborate opinion the court held the}' could not be so taxed. The 
syllabus is: 

Property of the United States is exempt by the Constitution of the United States 
from taxation under the authority of a State. 

In the opinion this summing up of the power of the United States 
to acquire and own lands within a State is made, page 154: 

So the United States, at tlie discretion of Congress, may acquire and hold real property 
in any State, whenever such property is needed for the use of the Government, in the 
execution of any of its powers, whether for arsenals, fortifications, light-houses, custom- 
houses, court-houses, barracks, or hospitals, or for an u other of tlie many public purposes 
for which such property is used; and when the property can not be acquired by vol- 
untary arrangement with its owners it may be taken against their will by the United 
States, in the exercise of the power of eminent domain, upon making just compensa- 
tion, with or without a concurrent act of the State in which the land is situated, 
(10 Peter, 25; 91 U. S.. 367; 94 U. S., 315, 320; 109 U. S., 513; 112 U. S., 645; 114 
U. S., 525.) 

In Cherokee Nation v. Kansas Railway Compan}^ (135 U. S., 641) 
the court denied the right of the Cherokee Nation, as the owner of land 
in the Indian Territory, to prevent a railroad company, under power 
vested in it by Congress, f roni condemning such land for right of way. 
The court said, page 656: 

The fact that the Cherokee Nation holds these lands in fee simple under patents 
from the United States is of no consequence in the present discussion, for the United 
States may exercise the right of eminent domain, even within the limits of the sev- 
eral States, for purposes necessary to the execution of the powers granted to the 
General Government by the Constitution. 

The court quotes with approval the opinion of Mr. Justice Bradley, 
in 35 Fed. Rep., 9, 19, as followife, page 656: 

The argument based upon the doctrine that the States have the eminent domain 
or highest dominion in the lands comprised within their limits, and that the United 

H. Kept. 1514, 60-1 3 



34 LANDS FOR NATIONAL FOREST PURPOSES. 

States have no dominion in such lands, can not avail to frustrate the supremacy 
given by the Constitution to the Government of the United States in all matters 
within the scope of its sovereignty. * * * Whatever may be the necessities or 
conclusions of theoretical law as to eminent domain or anything else, it must be 
received as a postulate of the Constitution that the Government of the United States 
is invested with full and complete power to execute and carry out its purposes. 

The court further, page 657, said: 

The lands in the Cherokee territory, like the lands held by private owners every- 
where within the geographical limits of the United States, are held subject to the 
authority of the General Government to take them for such objects as are germane 
to the execution of the powers granted to it; provided only that they are not taken 
without just compensation being made to the owner. 

In U. S. V. Gettysburg- Electric Railway, 160 U. S., 668, it is held 
not only that the United States has power to hold lands in a State for 
the purpose of "preserving the lines of battle at Gettysburg, Pa., 
and for properl}" marking with tablets the positions occupied by 
the various commands of the armies of the Potomac and of northern 
Virginia on that held, and for opening and improving avenues along 
the positions occupied by troops upon those lines, and for fencing the 
same, and for determining the leading tactical positions of batteries, 
regiments, brigades, divisions, corps, and other organizations, with 
reference to the study and correct understanding of the battle and to 
mark the same with suitable tablets, each bearing a brief historical 
legend compiled without praise and svithout censure," but that the 
United States has power to condemn lands within a State for such pur- 
pose. The court below held that "the intended use of the land is not 
that kind of a public use for which the United States has the Consti- 
tutional power to condemn land," and this holding was reversed by the 
unanimous opinion of the Supreme Court. 

Mr. Justice Peckham, for the court, page 679, said the important 
question to be determined was whether the use proposed was of that 
kind of public use for which the Government of the United States is 
authorized to condemn land. He said: 

It has authority to do so whenever it is necessary or appropriate to use the land in 
the execution of any of the powers granted to it by the Constitution. 

He said, page 680: 

Upon the ijuestion whether the proposed use of this land is a public one, we think 
there can be no well-founded doubt. And also, in our judgment, the Government 
has the constitutional power to condemn the land for the proposed use. It is, of 
course, not necessary that the power of condemnation for such purpose be expressly 
given by the Constitution. The right to condemn at all is not so given. It results 
from the powers that are given, and it is implied, because of its necessity or because it 
is appropriate in exercising these powers. Congress has the power to declare war 
and to create and e(]uip armies and navies. It has the great power of taxation to be 
exercised for the common defense and general welfare. Having such powers, it has 
fcuch other and implied ones as are necessary and appropriate for the purpose of 
carrying the powers expressly given into effect. Any act of Congress which plainly 
and directly tends to enhance the respect and love of the citizen for the institutions 
of his country, and to quicken and strengthen his motives to defend them, and which 
is germane to and intimately connected with arid appropriate to the exercise of some 
one of all of the powers granted by Congress, must be valid. This proposed use 
comes within such description. 

He further said: 

The end to be attained by this proposed u^e, as provided for by the act of Congress, 
is legitimate and lies within the scope of the Constitution. 

He further said, page 683: 

Its national character and importance, we think, are plain. The power to con- 
demn for this purpose need not be plainly and unmistakably deduced from any one 



LANDS FOR NATIONAL, FOREST PURPOSES. 85 

of the partioulaiiy specified powers. Any numVjer of these powers may be grouped 
together, and an inference from them all may be drawn that the power claimed has 
been conferred. 

These authorities fully sustain the proposition that Congress has the 
power to accjuire lands "in any State for any letj;itimate oovernniental 
use, and that Article I, section S, of the Constitution, does not limit 
this power. The limitation of this power that is fixed by th(> Consti- 
tution is that such lands can be acquired only in execution of some 
power that is delegated to Congress. 

POLITICAL POWER AXD LEGISLATIVE CONTROL. 

If the United States shoidd ac(]uire a forest reserve in a State, a 
most interesting and important question would arise as to where the 
political power and legislative control over such forest reserve would 
vest, and this is a question separate and apart from the question of 
power in the United States to acquire such reserve. H. R. 10456 and 
10457 provide that such reserves shall not be acquired in a State with- 
out the consent of such State. The language of section 2 is — 

That no deed or other instrument of conveyance shall be accepted or approved by 
the Secretary of Agriculture under this act until the legislature of the State in which 
the land lies' shall have consented to the acquisition of such land by the United States 
for national forest purposes. 

Section 4 prohibits any payment for the lands "until the title shall 
be satisfactory to the Attorney-General and shall be vested in the 
United States.'' If the State consents to the passing of the title for 
national forest purposes and the title is actually approved and passed 
nothing further will be required by the United States. Section 8 
gives to the United States jurisdiction to punish offenses only, leaving 
all other jurisdiction in the State. Section 7, however, provides 
that— 

The lands acquired under this act shall be permanently reserved, held, and admin- 
istered as national forest lands under the provision of section twenty-four of the act 
approved March third, eighteen hundred and ninety-one. volume twenty-six. Statutes 
eleven hundred and three, and acts supplemental to and amendatory thereof. 

This section confers more jurisdiction on the United States than the 
simple one of punishing offenses. 

In my opinion should the United States acquire forest reserves 
in a State for the purpose of navigation, which it has the consti- 
tutional power to do, and no more appeared than the mere fact of 
acquiring title by the United States whether by purchase or con- 
demnation, the United States would hold such land as any other 
proprietor in the State, subject to the complete jurisdiction of the 
State, save in two particulars. The State could not tax the lands, nor 
could it interfere with the governmental uses for which the United 
States acquired thenu This, I think, is made perfectly clear by the 
Fort Leavenworth case (114 U. S., 527) and the Van Brocklin case 
(117 U. S., 151), as well as in some of the other cases already cited. 
In order for the United States to exercise an}^ other jurisdiction over 
such lands, the State w^ould have to expressly cede such other jurisdic- 
tion. These bills require no cession of jurisdiction by the States. 
They simply require the consent of the State, that the title shall pass 
for national forest purposes. The consent to the passing of title would 
not add anything to the two rights or privileges already referred to, 
for these the United States would enjo}', even though the State had 
not consented to the passing of the title. 



36 LANDS FOR NATIONAL FOREST PURPOSES. 

In the absence of a cession of jurisdiction for that purpose by the 
State, the United States would have no jurisdiction to set apart such 
lands as "'permanent national forest lands" and control them as such 
for a purpose wholly unrelated to navioation, nor could the State cede 
jurisdiction for such purpose, for the power of the State and the power 
of the United States is each limited to ceding- jurisdiction and accept- 
ing jurisdiction over lands within a State for a constitutional use, and 
such use, as we have already seen, is not a constitutional use. Again, 
forest reserves as an aid to navigation not being ''needful buildings," 
nor in any sense related to the properties or purposes described in 
article 1, section 8, of the Constitutian, it is much to be doubted if the 
United States, even with the express grant of the State, could exercise 
"exclusive'' legislative power over them. There is some force in the 
suggestion that article 1, section 8, of the Constitution limits the power 
of the United States to exercise "exclusive'' legislative power in a 
State to the particular properties and purposes enumerated. Be that 
as it may, however, it is quite evident that a simple consent of the 
State that the United States might purchase lands within its domain, 
would confer no legislative power, exclusive or otherwise, on the 
United States that would not attach without such consent. 

Where land is acquired in a State by the United States for one of 
the purposes enumerated in article 1, section 8 of the Constitution, 
and the State consents thereto, the Constitution inmiediately confers 
exclusive legislative power ovei- such land upon the United States. In 
the case of Fort Leavenworth (ll-t U. S., 527). the court quotes with 
approval, on page 583, from Mr. Justice Story, in U. S. v. Cornell (2 
Mason, 60), as follows: 

P^or it may well be doubted, whether Congress is by the terms of the Constitution 
at liberty to purchase lands, property, dock-yards, etc., with the consent of the State 
legislature, where such consent is so qualified that it will not justify exclusive legis- 
lation of Congress there. It may well be doubted if such consent be not utterly void. 

This rule has no application to lands acquired in a State for some 
constitutional purpose other than those enumerated in article 1, sec- 
tion 8, and in all such other cases where a State cedes jurisdiction it, 
may limit or qualif}^ such cession as it sees proper to do. 

In Cooley's Constitutional Law, ?>d edition, page 103, the entire mat- 
ter is sununed up as follows: 

The Constitution, as we have seen, provides for the exclusive jurisdiction in the 
United States not only over the seat of government but over other places purchased 
with the consent of the legislature of the State for the erection of needful buildings. 
This power of exclusive legislation carries with it exclusive jurisdiction; the full 
sovereign authority over such places passes under such circumstances into the hands 
of the National Government. The State, therefore, can not take cognizance of acts 
committed there, and the inhabitants of those places cease to be inhabitants of the 
State and can no longer exercise any civil or political rights under the laws of the 
State. But land within the limits of a State can be acquired for governmental pur- 
poses in other ways than by purchase with the consent of the legislature; and if 
acquired in any other way, exclusive jurisdiction and legislative power do not pass 
to the United States. The property may be purchased without the consent of the 
legislature, may be taken under the power of eminent domain, or mav be part of 
territory originally belonging to the United States and not exempted from the 
jurisdiction of the State at the time of the admission of the State wherein the prop- 
erty lies. In these cases, the interest of the United States is that of an ordinary pro- 
prietor, but doubtless, under any circumstances, the Federal property, however 
accpiired, would be free from any such interference and jurisdiction of the State as 
would destroy its effective use for Federal purposes. The State may also cede juris- 
diction to the Federal Government over any such jjlace, and in doing so may make 
such restrictions or conditions as it may see fit, provided they are not inconsistent 
with the effective use of the property for the purposes for which it was acciuired. 



LANDS FOR NATION AX. FOREST PURPOSES. 37 

Upon the question now being discussed the decision of Judge Sea- 
n.an (71 Fed. Rep., 545) is to the point. Tlie sylhibus is: 

The purchase of lands in a State by the General (iovernnient with legislative con- 
sent does not ipso facto confer upon the General <TOvernment exclusive jurisdiction 
unless the purcliase is for a fort or for some other purpose distinctly named in article 
1, section 8, of the Constitution; and in order that exclusive jurisdiction may be 
acquired over land taken for any other purpose, the act providiu"; therefor and call- 
ing for the consent must unetiuivocally declare that exclusive jurisdiction is intended 
and necessary, or such necessity must be manifest from the purpose of the act. 

Judge Seaman, in his opinion, page 552, sa^s: 

It was declared by Chief Justice Spencer in the great and leading case of People v. 
Godfrey (17 Johns, 225), as a fundamental principle, "that the rights of sovereignty 
are never to be taken away by implication," and the rule thus stated is an accepted 
canon in the construction of powers between the nations and State. Reading the 
Wisconsin statute in the light of this rule, and in the view that the purpose was not 
one for which exclusive legislation was prescribed, either by the Constitution or by 
Congressional enactments, the omission of the word "exclusive," or some equivalent 
term, is material, and in my opinion the act must be interpreted as ceding — that is, 
yielding or surrendering — to the United States such jurisdiction as Congress may find 
necessary for the object of the cession and for the exercise of wnich there must be 
clear enactments to that end within its powers. 

The Wisconsin act reads: 

That jurisdiction over the several tracts of land hereinafter mentioned be, and 
hereby is, ceded to the United States of America. 

In 114 V. S., 545, Chicago and Pacific Railway Co. v. McGlinn, the 
court referred to the point made in the argument of Fort Leavenworth 
V. Lowe et al., same volume, that the act of (;ession by the State of 
Kansas conferred ""exclusive" jurisdiction over the territory to the 
United States and that any limitations in the act were void. The court 
said in speaking of Fort Leavenworth v. Lowe et al. : 

We there held that a building on a tract of land owned by the United States used 
as a fort or for other public purposes of the Federal Government is exempted as an 
instrumentality of the Government from any such control or interference by the 
State as will defeat or embarrass its effective use for these purposes. But in order 
that the United States may possess exclusive legislative power over the tract, except 
as may be necessary to the use of the building thereon as such instrumentality, they 
must have acquired the tract by purchase, with the consent of the State. This is 
the only mode prescribed by the Federal Constitution for their acquisition of exclu- 
sive legislative power over it. We also held that it is competent for the legislature of 
a State to cede exclusive jurisdiction over places needed by the General Government 
in the execution of its powers. * * * 

This case involved a suit against a railroad company on the reserva- 
tion for killing a cow, brought in the State court of Kansas, under a 
Kansas statute. The railroad company contended that the Kansas 
statute was void, because the United States had exclusive legis- 
lative power over the reservation and that the limitation in the act 
of cession was void. The court said, page 546: 

We are clear that this contention can not be maintainetl. It is a general rule of 
public law, recognized and acted upon by the United States, that whenever political 
jurisdiction and legislative power over any territory are transferred from one nation 
or sovereign to another, the municipal laws of the country, that is laws which are 
intended for the protection of private rights, continue in force until abrogated or 
changed by the new government or sovereign. By the cession public propertj' 
passes from one government to the other, but private property remains as before and 
with it those municipal laws which are designed to secure its peaceful use and 
enjoyment. 

In 146 U. S., 325, Benson v. U. S., the Kansas military reservation 
and the jurisdiction of the United States thereover was again before 
the Supreme Court. This time in a prosecution before the circuit 



38 LANDS FOB NATIONAL FOREST PUEPOSES. 

court of the United States for murder committed on the reservation. 
The court, on page 831, said: 

It is contended by appellant's counsel that within the scope of those decisions (114 
U. S., 525, and 114 U. S., 542) jurisdiction passed to the General Government only- 
over such portions of the reserve as are actually used for military purposes, and that 
the particular part of the reserve on which the crime charged' was committed was 
used solely for farming purposes. But in matters of that kind the courts follow the 
action of the political department of the Government (2 Wall., 525, 537). The char- 
acter and purposes of its occupation having been officially and legally established by 
that branch of the Government which has control over such matte/s, is not open to 
the courts, on a question of jurisdiction, to inquire what may be the actual uses to 
which any portion of the reserve is temporarily put. There was therefore jurisdic- 
tion in the circuit court. 

In 162 U. S., 399, Palmer v. Barrett, a case from New York, the 
question arose as to the exclusive jurisdiction of the United States over 
cei'tain lands adjacent to the navy-yard and hospital in Brooklyn that 
had been ceded with certain limitations to the United States by the 
State of New York. The case involved a lease. The court said: 

In the absence of any proof to the contrary it is to be considered that the lease 
was valid and that both parties to it received the benefits stipulated in the contract. 
This being true, the case then presents the very contingency contemplated by the 
act of cession, that is, the exclusion from the jurisdiction of the United States of such 
portion of the ceded land not used for the Governmental purposes of the United 
States therein specified. Assuming, u-ithovi deciding, that if the cession of jurisdiction 
to the United States hod been free from condition or limitation the land sJiould he treated 
and considered as ivithin tJie sole juri.^diction of the United States, etc. 

This last clause suggests the doubt heretofore expressed of the exist- 
ence of unlimited power in the United States to exercise "exclusive" 
legislative power in a State with the consent of the State. This doubt 
is strengthened by the following case: 

In Pollard's Lessee v. Hagan et al. (3 Howard, 212, 223), the court 
says, in speaking of the act admitting Alabama into the Union: 

Nothing remained in the United States, according to the terips of the agreement, 
but the public lands. And if an express stipulation had been inserted in the agree- 
ment, granting the municijial right of sovereignty and eminent domain to the United 
States, such stipulation would have been void and inoperative, because the United 
States have no constitutional capacity to exercise municipal jurisdiction, sovereignts', 
or eminent domain within the limits of a State or elsewhere, except in the cases in 
which it is expressly granted. 

The court here quotes article l,rsection 8, of the Constitution, and 
says: 

Within the District of Columbia and the other places purchased and used for the 
purposes above mentioned, the national and municipal powers of Government of 
every description are united in the Government of the Union. And these are the 
only cases within the United States in which all the powers of Government are united 
in a single Government, except in the cases alreadj' mentioned in the temporary 
territorial governments, and there a local government exists. 

The opinion, further, page 224, recites: 

We therefore think the United States hold the public lands within the new States 
by force of the deeds of cession and the Statutes connected with them, and not by 
any municipal sovereignty which it may be supposed they possess, or have reserved 
by compact with the new States for that particular purpose. The provision of the 
Constitution above referred to shows that no such power can be exercised by the 
United States within a State. Such a power is not only repugnant to the Constitu- 
tion, but it is inconsistent with the spirit and intention of the deeds of cession. 

It should be said of this opinion that the right of " eminent domain," 
referred to in it, has reference to ultimate ownership and dominion of 
propert}' rather than to the right to take private property for public 



LANDS FOR NATIONAL FOREST PURPOSES. 39 

uses. It i.s in the latter sense that the right of ''eminent domain" has 
been so frecjuently held by the Supreme Court to exist in the Ignited 
States. 

Whatever iiuiv be the power of the United States to exercise exclu- 
sive legislative power within a State, it is not necessary now to deter- 
mine nor is it necessary to determine what jurisdiction should be ceded 
by a State in case the United States purchase forest reserves within 
its domain. It is (^uite evident that II. K. 10456 and 1U4.5T do not con- 
template that such reserves shall be acquired in any State without the 
consent of such State, and it is ecjually evident that these })ills do not 
contemplate that the United States shall exercise exclusive legislative 
power over such reserves when purchased. These questions therefore 
are not submitted to the committee. Considering the questions that 
are presented, there ought to be no ditticulty in adjusting the question 
of power over such reserves between the State and the United States. 
The Supreme Court said in the Fort Leavenworth v. Lowe case (114 
U. S., 541) that— 

The State and the General Government may deal with each other in any way they 
may deem best to carry out the purposes of the Constitution. 

One of the purposes of the Constitution being to preserve and main- 
tain the use of our navigable rivers as aids to conmierce, the State and 
the Federal Government may agree as thev deem best to carry out 
this great purpose. Such agreement can be expressed in the act of 
Congress by setting forth therein in detail the particular cessions of 
jurisdiction by the State that would be required by the United States 
as a condition precedent to purchasing the reserves, and by also setting 
forth therein the purpose for which such jurisdiction is required. This 
purpose should plainly appear to be that of aiding navigation. All 
other purposes should be eliminated. Such an act of Congress, fol- 
lowed by a cession from the State of the required jurisdiction for the 
purpose stated, would constitute the agreement between the United 
States and the State and would be clearly within the scope of the 
Constitution. 

IN CONCLUSION. 

It is amply apparent from the foregoing statement that Congress 
has the Constitutional power to acquire lands and forest reserves in a 
State by purchase, condemnation, or otherwise, as an aid to naviga- 
tion, if it be made to appear to Congress that such reserves would 
materially or substantially aid navigation. 

William G. Brantley. 



